Travelers Insurance Company v. Savage.

in the petition. It is a part, and perhaps quite the most important part, of the evidence claimed to be newly discovered.

It is in proof from the record that Leonora Savage was known to the present plaintiffs, as a witness, prior to the former trial. Frederic Beals, her brother, testified that she expected to come to court, but was prevented by sickness. Sickness certainly was a sufficient cause for her not coming, and if she was an important witness her absence was a sufficient reason for the plaintiffs to have obtained a postponement, or a continuance of the case, which doubtless they could have had granted had they asked it. That they did not ask it is satisfactory evidence that they deemed it of little or no importance. That the plaintiffs then knew all that they now know in regard to the character of her testimony, and of the letters and documents which she had in her possession that might have an important bearing on the issues to be tried, we must take to be proved and true. The exercise of due diligence, which we must assume was exercised, demands it.

There is an allegation in the petition that due diligence was exercised, and the demurrer admits as true all the facts that are well pleaded. The mere allegation however is not enough. It must be made to appear that due diligence was used. Here it appears that the witness was expected at court. In assuming that the party calling her knew the substance, if not the details of her testimony-knew, at all events, that it was important enough to be introduced, we assume only what every day's experience in the trial of causes proves to be true. She gave to her brother, to bring to court as a witness, her marriage certificate. Whether she also gave him, or the plaintiffs, the letters now claimed to be important, or whether the plaintiffs knew of their existence before the former trial, is not positively shown. Either of these suppositions is highly probable. At all events, we see no grounds for granting a new trial for any thing that Leonora Savage can testify to, or produce, which was known to her, or which was in her possession, prior to the former trial. Such testimony is in no sense newly discovered. All documentary evidence then in her possession, which can now be obtained, might readily have

Travelers Insurance Company v. Savage.

been obtained before the former trial by the use of due and ordinary diligence.

Mrs. Esther B. Beals, and Mrs. Ella A. Pierce, her daughter, are witnesses additional to Mrs. Leonora Savage, to prove the identity of the Jesse L. Savage who was the husband of Leonora Beals, with the Jesse L. Savage who married Fannie E. Savage. Both these witnesses reside in Stoughton, Massachusetts. The present plaintiffs had taken measures to get testimony from that locality before the former trial. They had communicated with Frederic Beals and his sister, Mrs. Leonora Savage. The point to be proved was, the marriage of Jesse L. Savage with Leonora Savage, and his identity with the Jesse L. Savage who married Fannie E. Savage. It is strange, to say the least, if Mrs. Esther B. Beals, or her daughter, Mrs. Pierce, knew any important facts not equally well known to Frederic Beals and his sister Leonora, that the plaintiffs should not have been informed of it. The exercise of the most ordinary diligence in making inquiries must have discovered those witnesses. The character of the case. was such that there would be every disposition to make the fullest disclosures. The witnesses were neither reluctant nor unwilling; quite ready, apparently, to go voluntarily out of the jurisdiction to give their testimony, and at last restrained only by sickness.

If the testimony of these two witnesses therefore is newly discovered, it is no ground for a new trial, for it might readily have been discovered and obtained before by the exercise of due diligence.

There are other fatal objections to granting a new trial on account of these witnesses. Among them is the fact that, if introduced, it would be merely cumulative to the testimony of Mrs. Leonora Savage, of whom, and of the importance of whose testimony, it is shown that the plaintiffs had knowledge before the former trial. She was not present at that trial, and that may have been a disappointment to the plaintiffs, but they chose to go on without her. So at least it appears, for there is no intimation that any delay or postponement was asked for. It is contrary to well settled principles

Travelers Insurance Company v. Savage.

to grant a new trial for evidence merely cumulative to evidence not deemed important enough to be introduced when it might have been introduced.

As to the testimony of Messrs. Wightman, Foote and Joyce, whose testimony is claimed as newly discovered, and who are relied on to prove identity by means of handwriting, it is sufficient to say that the plaintiffs had the undoubted signature of the Jesse L. Savage who obtained from them a policy on his life, on the application for that policy. Being in communication with Mrs. Leonora Savage, who had divers letters written and signed by her husband, Jesse L. Savage, proof of the identity of the man, so far as handwriting was concerned, could easily have been introduced on the former trial. If the party deemed it so unimportant as not to introduce it then, it cannot be sufficient ground for a new trial now. They could very clearly have availed themselves of evidence of this character on a former trial, and so this evidence would be in the strictest sense merely cumulative. As to the photograph which is claimed to have been discovered in a secret society, a copy of which it is said can be procured, and as to any other evidence which we have not specifically noticed, if any or all of it is admissible, and would be material, we think it does not appear but that it might have been procured at the first trial by due diligence. Courts are and should be reluctant to disturb the verdicts of juries. In the language of CHURCH, C. J., in Waller v. Graves, 20 Conn., 310: "If the evidence now relied upon could have been known before the trial by great diligence, and was not, a new trial will not be granted."

We are by no means certain that doubt on this question of identity was the controlling point in the minds of the jury on the former trial, and the one which determined the verdict. There is no doubt but that the plaintiff in that case, now the defendant, proved a marriage in fact of Jesse L. Savage to her, in December, 1865. That she supposed herself to be legally his wife there seems also to be no room for doubt. Jesse L. Savage has now passed beyond the jurisdiction of earthly tribunals, and in the judgment of charity, and perVOL. XLIII.-25

Phelps v. Hunt.

haps in truth, it may be said that he honestly supposed himself to have been divorced when he contracted his second marriage; that the divorce had been obtained at an carlier term of the court than in fact it was. If the jury took this view, and thought that a marriage in fact, contracted in good faith, was sufficient to entitle the plaintiff to recover, their verdict would have been the same as it was, even if all this so called newly discovered testimony had been before them. In that point of view it cannot be called material.

We advise the Superior Court to render judgment in favor of the defendant, that the petition is insufficient.

In this opinion the other judges concurred.

LEVERETT L. PHELPS vs. JAMES HUNT.

In a suit brought by an attorney for sundry professional services, after he had testified to the reasonableness of his charges, which the defendant claimed were exorbitant, he was asked on cross-examination what his customary charge per day for appearing before a justice of the peace was at the time. Held that the enquiry was admissible, although there was no item in his bill of particulars of that character.

Upon the question of the reasonableness of the plaintiff's charge for advice on a certain occasion, held that the remote and contingent consequences of fol lowing the advice could not be considered.

It is not enough that enquiries on cross-examination are pertinent to some matter testified to on the examination in chief, if such matter was in itself inadmissible, although not objected to at the time. Such enquiries, if objected to, must stand upon their own ground of relevancy.

Where such enquiries, being objected to, are ruled out as irrelevant, the party against whom the ruling is made can then ask the court to rule out the evidence already received in chief, so far as it was irrelevant; and if the court should refuse to do it, it would be ground for a new trial.

Original files in judicial proceedings, where offered in evidence merely to show that they exist, may be admitted on any satisfactory evidence of their identity. But where judicial records are offered as such, and in proof of the facts which they purport to state, they must, if originals, be brought into court by the official custodian of them, who can testify as to their character; or copies, certified as true by such custodian, may be introduced.

A new trial will not be granted where a ruling of the court, however erroneous, has done no harm to the party seeking a new trial.

Phelps v. Hunt.

ASSUMPSIT, to recover for services as an attorney; brought to the Court of Common Pleas of New Haven County. A new trial having been granted in the case, (40 Conn. R., 97,) the case was referred to an auditor, who reported that there was nothing due the plaintiff. The plaintiff filed the following remonstrance against the acceptance of the report of the auditor.

1. The plaintiff having testified in chief that his charges in his bill of particulars were reasonable, was asked on crossexamination, what was his customary charge in 1870, per day, for appearing on trials before a justice of the peace. This question was objected to as irrelevant, but the auditor admitted it, and the plaintiff answered that it was $10.

2. The defendant claimed that he had sued the plaintiff before a justice of the peace in Stafford prior to the commencement of this suit, for the bill of shoes and cash allowed as a set-off on the bill of particulars, and recovered judgment for the same, and that the plaintiff had given certain testimony at the trial at Stafford as to the amount of his charges, and in support of this claim offered in evidence three separate papers, one purporting to be a writ and declaration indorsed with a memorandum, "issue for plaintiff, damages $100," and a statement that an appeal was taken and allowed therefrom to the next Superior Court, the second purporting to be the bill of particulars, and the third purporting to be a plea and notice; together with parol evidence that the three papers were the original files of said action at Stafford. The plaintiff objected to their introduction, on the ground that they were not the record nor a copy of the record of said suit, but the auditor admitted them in evidence.

3. The defendant testified in his direct-examination, that certain advice given him by the plaintiff and charged for in the bill of particulars, not to go up to Hartford to see Mr. Goodman, one of his creditors there, as Goodman had requested, was unwise, and that if he had so gone up, instead of following the plaintiff's advice, as he did, he could have secured an extension from Goodman and so avoided an attachment soon afterwards levied by him on the stock of boots and