The Plaintiff in the writ of certi-orari, 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; ami 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.
Vervell v. Trexler, 5 N.C. 438, 1 Mur. 438 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 438, 1 Mur. 438
Henry Vervell v. John Trexler.
1 I From Rowan. j
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 tiróse 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 certi-orari was granted, directed to the Clerk of the Court of *439Fleas and Quarter Sessions for Rowan County, commanding him to certify the record of certain proceedings had in a cause depending in the said Court, wherein John Trexler was Plaintiff, and the said Yervell 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 Yen ell, and in avoidance thereof. Yervell 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 cer-tiorari, and to disprove certain facts set forth in Trex-ler’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 up(^i which the writ was granted, or in opposition to those filed by the Defendant 5 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 liad not the opportunity of taking them at the term ai which the Defendant’s affidavits were filed. This question was sent to this Court; and