Seymour v. Webster

Unless this cause Can bé heard without the return of the Justice, the party is remediless. We think the authority which we have been referred to by the plaintiff’s counsel, presents a case similar to the present. There, the right of the Court to hear the matter upon affidavit is placed upon the familiar maxim, “ that the visitation of Providence works an injury tono man.” (a) The judgment rendered in that cause was afterwards reversed on error,(b) but the right to hear the Cause upon affidavit was not questioned by the Court of Errors. They went upon other grounds, arising (let it be remarked) from the very facts which appeared by the affidavits. We think that, to prevent a failure of justice, the same course must be pursued here. The affidavits before us do not disagree ; but the cause must be heard at some future day.

We accordingly direct the following rule :

“ Ordered, that the plaintiff in error have leave to bring on the argument of this cause at the next term, on the usual notice; that the proceedings had before the Justice be brought before the Court on affidavits ; that the plaintiff serve on the defendant’s attorney, and the defendant’s attorney, in like manner, serve on the plaintiff’s attorney, eop*170ies of the affidavits on which they respectively rely ; and: that the question of affirmance or reversal be argued on the facts contained in those affidavits.”