Majority
p. 135*Knowlton against Bowrason.
Headnote
-At the last October term, the venue was changed from ®ranSe to New York, no one appearing to oppose, on an affidavit by the defendant of 27 witnesses residing in New -y -i x orjs* ,•^ow> 011 affidavits excusing the default, and that the plaintiff had 43 witnesses in Orange, a motion was made °Pen former rule, and bring back the venue to the latter county.
answer to this motion, 20 witnesses were now sworn t0 as residing in New York, besides those named .in the . . ° . ' papers for the first motion. .
Where a rule faíütTis opened on excusing the default, it must be heard, wh°tookPtrfy the same pawhichhe ginally moved
cannot enlarge the ground of the motion by way of reply to his adversary.
E. g. a rule by default to change a venue, on being opened cannot be maintained addttionaiwi^ nesses.
J, B. Lóvett and W. D. Craft for the defendant,
q Motherland, contra, *
We cannot notice these supplemental witnesses of the defendant. The rule is, that where a motion by default is opened on excuse, it must be heard as to the party who took it, on the identical papers upon which it was moved;. and there is nothing to- take this case out of that rule. The mover cannot, as of course, avail himself of his advantage to .eke out the original ground of his motion, by: way of reply to the motion of his adversary who comes to open the rule. The motion must be heard as an original one. The former motion is denied, on the plaintiff paying the costs of the October term.
Buie accordingly.