Opinion
July Term, 1810.
The plaintiff in a writ of certiorari is entitled to file affidavits, after those of the defendant have been filed, either to confirm those upon which the writ was obtained or to disprove those filed by the defendant; and he is entitled to a continuance of the cause to procure such affidavits, if he make it appear to the satisfaction of the court that he cannot procure them at the term at which the defendant's affidavits are filed.
UPON the affidavit of Henry Vervell, a writ of certiorari was granted, directed to the clerk of the Court of Pleas and Quarter Sessions for Rowan County, commanding him to certify (439) the record of certain proceedings had in a cause depending in the said court, wherein John Trexler was plaintiff and the said Vervell was defendant. This writ was returnable to April Term, 1810, of the Superior Court of Law for Rowan County; at which time Trexler, the defendant to the writ, filed his affidavit in opposition to the affidavit of Vervell and in avoidance thereof. Vervell prayed time of the court until the next term to file affidavits in confirmation of the first affidavit by him made to procure the writ of certiorari and to disprove certain facts set forth in Trexler's affidavit, and for this purpose he moved for a continuance of the cause upon affidavit. A question was made, Whether the plaintiff in certiorari, after the defendant has filed his affidavits, is entitled to take and file other affidavits, either in confirmation of that upon which the writ was granted or in opposition to those filed by the defendant; and also entitled to a continuance of the cause for the purpose of procuring such affidavits, where it appears to the court upon affidavit that he had not the opportunity of taking them at the term at which the defendant's affidavits were filed. The question was sent to this Court.
From Rowan.
The plaintiff in the writ of certiorari is entitled to file affidavits, after those of the defendant have been filed, either to confirm those upon which the writ was obtained or to disprove those filed by the defendant; and he is entitled to a continuance of the cause to procure such affidavits, if he make it appear to the satisfaction of the court that he cannot procure them at the term at which the defendant's affidavits are filed.
(440)