Smith v. Barker

22 F. Cas. 454, 3 Day 280

Opinion

Livingston, J.

When an affidavit is relied upon, the court will not go out of it. I shall, therefore, decline hearing any ore tenus explanation.

The name of the witness must always be disclosed in the affidavit, unless there are circumstances to show that the party, without any fault of his, was unable to learn his name.

Hereafter, when a cause is ready for trial, no application for a continuance will be successful, unless upon an affidavit conformable to the English practice. His honour remarked upon the inconveniences of putting off a cause ready for trial, in this court; and said, the English courts, and the courts in those states which follow the English practice, were growing more strict upon this subject.