The Court or Appears, at November term, 1804, affirmed the judgment of the General Court. Upon the question stated in the bill of exceptions that due diligence had not been used to procure the testimony upon the second trial, one of the judges, f Dennis, J had great doubts whether, as the defendant in the court below had obtained the testimony in the first action, he was not excused from endeavouring to procure it at the trial had in this suit, when he considered himself as possessing it. under the survey in the former suit.