Much argument has taken place, and still the case is open. The additional affidavit does not form such a ground as to alter my opinion heretofore delivered; and therefore the prosecution ought not to be continued. It is not necessary to examine every part of the affidavit, the principal ground is the want of time, and yet we find that, after the first affidavit, a man set off on Saturday evening for the purpose of procuring the attendance of these two women, and returned on Monday morning; there is no account of exertions before, though more than a week had then passed since the finding of the bill. As to affidavits, he believed it to be a general rule, that, when the Court had heard one affidavit, they would not receive another; but this, like all general rules, may under particular circumstances admit of exceptions. Without giving any opinion on that ground in this case, it is now open, and he would only say, that, when he gave his opinion on Saturday, he did not take into view that *Page 220 the prisoner was first brought to the bar without counsel, and thought that this circumstance might have produced a relaxation of the general rule.
The jury was impanelled and sworn. The evidence offered showed the place where the offence was committed; some doubted whether it was in this State. The line dividing this State from Kentucky had never been marked near this place, nor were any of the witnesses certain whether it was in this State or Kentucky. Being a new settlement, it had not obtained any reputation as to which State it lay in. A witness was asked his opinion, but this was objected to.