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of the witness relied on, will permit opposing affidavits to be read. Williams v. Baldwin.(1) Assumpsit on a promissory note, and verdict for plaintiff. Motion on behalf ground of newly

of the defendant for a new trial, on the discovered evidence. Affidavits on both sides were submitted. Woodworth, J., delivered the opinion of the court. "The defendant makes oath, that since the trial, and not before, he has discovered that Stephen Tappen was a material witness for him on the trial of this cause. It appears that the endorsement is in the handwriting of Tappen; that for five or six years last past, he has been in the service of the defendant, and resided near him at the time of the trial.-These facts seem to establish great inattention in not procuring the testimony of the witness, or in not putting off the trial of the cause. They excite strong suspicion, that the defence is colourable only. The plaintiff has proved, by a number of witnesses, that Tappen is wholly unworthy of credit under oath. This it was competent for him to do. In Pomeroy v. The Columbian Insurance Company, (2) the plaintiff was permitted to read affidavits to question the credibility of the witness newly discovered. On the whole, I am of opinion that there has not been proper diligence to obtain the testimony of Tappen, and there are strong grounds to believe his character is infamous. The motion for a new trial must therefore be denied.

3. On motions for new trials on newly discovered evidence, it is a well settled rule not to grant them, if the evidence is merely cumulative, or in corroboration of testimony to a point presented at the former trial.(3) Thus,

(1) 18 Johns. Rep. 489.

(2) 2 Caines, 260. (3) 2 Tidd, 938. 2 Arch. 224. Gra. Prac. 511.

In Steinbach v. The Columbian Insurance Company.(1) Action on a policy of insurance on the ship Catherine. The destination of the ship formed the principal question at the trial. There was a verdict for the plaintiff. The defendants moved for a new trial on various grounds, and, among others, that of newly discovered evidence. Livingston, J., delivered the opinion of the court, and upon the point of new evidence, thus-"It is said, that if a new trial be granted, there are two witnesses, who were not known to the defendants at the time of the trial, who can testify as to the destination of the Catherine. This was the fact principally controverted on the former trial, and we are now applied to for another, merely because all the witnesses who knew something of the matter have not been examined. Every one must perceive the inconvenience and delay which will arise from granting new trials upon the discovery of new testimony, or other witnesses to the same fact. It often happens that neither party knows all the persons who may be acquainted with some of the circumstances, relating to the point in controversy. If a suggestion, then, of the present kind be listened to, a second, if not a third, and a fourth trial may always be had, There may be many persons yet unknown to the defendants, who may be material witnesses in this cause, and this may continue to be the case after a dozen trials." And new trial refused.

And, in Smith v. Brush.(2) Debt on bond for the penal sum of $4000. Plea, general issue and usury. An attempt was made to establish the defence of usury, by one Brush, a witness produced to a conversation between the parties. The jury found a verdict for the plaintiff. A motion was made to set aside the verdict on grounds arising out of the case, and on affidavits of newly discovered

(1) 2 Caines, 129.

(2) 8 Johns. Rep. 84.

evidence. Per Curiam.-"The new testimony, alleged to be discovered does not relate to any new fact, but goes merely to corroborate the credit of Brush's testimony.-But it is against the general rule to grant a new trial, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted upon the former trial. It is the duty of the parties to come prepared upon the principal point, and new trials would be endless if every additional circumstance bearing on the fact in litigation, was a cause for a new trial." The motion was denied.

So in Pike v. Evans.(1) Assumpsit, upon a contract that the defendant should make up and deliver certain clothing to the plaintiff. A question arose at the trial, whether the clothes had been delivered by the defendant within the time contracted for. The jury found a verdict for the plaintiff. The defendant moved to set aside the verdict, and for a new trial; and one of the grounds was, newly discovered evidence, as to which affidavits were produced of testimony, the object of which was to substantiate the delivery of the clothes in due time. Per Curiam.-"The newly discovered evidence is material to make out the delivery of the clothes by the time agreed on, and the only objection to granting a new trial on this ground is, that it is merely cumulative testimony. This must have been known to the defendant to be a material question on the trial. The newly discovered evidence does not relate to any new fact; and it has been repeatedly decided by this court, that a new trial ought not to be granted, merely for the discovery of cumulative facts, relating to the same matter, which was principally controverted on the former trial."

And in Whitbeck v. Whitbeck.(2) Assumpsit, on money

(1) 15 Johns. Rep. 210.

(2) 9 Cowen, 266.

counts, and on a contract for a certain messuage or tenement and premises, with the appurtenances, sold by the plaintiff to the defendant, at his instance and request. Also a count for goods sold, and on an account stated. The jury found for the plaintiff. The defendant moved for a new trial on various grounds, and among others, of newly discovered evidence. Sutherland, J.-"There is nothing in the ground of newly discovered evidence. It is strictly cumulative upon one of the principal points in controversy upon the first trial."(1)

This rule has been illustrated with peculiar force and clearness in a recent case, which, from its nature, directed the attention of the court, in a very special manner, to the subject. The People v. The Superior Court of NewYork.(2) Motion for a mandamus, to vacate a rule granting a new trial. An action of assumpsit was brought in the court below, in favour of Oebricks, against the president and directors of the Phoenix Bank, to recover the amount of a bill of exchange for $2.500, payable at sight, and endorsed by one Heckscher to the plaintiff. On the trial of the cause, Heckscher, the drawer of the bill, testified, that he left the bill at the bank on Saturday, the 30th May, 1829, a short time before 12 o'clock, and that he was at the bank but once on that day. He detailed a variety of circumstances, which induced him to speak with certainty as to the particulars of the transaction. Evidence was produced, on the part of the bank, to contradict this witness, especially as to the hour of the day he left the bill at the bank. The judge charged, that if they believed that the bill in question had been left with the defendants before 12 o'clock, they ought to find for the plaintiff, otherwise for the defendants. The jury found for the plaintiff. A mo

(1) Vide 2 Hall's Rep. 391. 3 Monroe, 403. (2) 5 Wendell, 114.

tion was then made for a new trial, on the ground of newly discovered evidence. The defendants produced an affidavit of one Russell, tending to impeach Heckscher, as to the fact of leaving the bill at the bank on the 30th of May, and other affidavits to show that the plaintiff's did not come to the knowledge of the facts until after the trial. The superior court granted a new trial, and an application was made to the supreme court for a mandamus, commanding that court to vacate the rule granting the new trial. Sutherland, J., delivered the opinion of the court. After a review of the leading cases on the subject of new trials, growing out of questions of evidence generally, the learned judge proceeds-"These observations are equally applicable to motions for new trials founded on newly discovered evidence. It has been shown that there are certain principles, in relation to such applications, which are clearly settled and well defined, by long continued practice and an uninterrupted series of decisions, in our own and other courts. Those principles are-1. That a party is bound and presumed to know the general leading points which will be litigated in his case. 2. That if he omits to procure evidence, which, with ordinary diligence, he might have procured, in relation to those points upon the first trial, his motion for a new trial, for the purpose of introducing such testimony, shall be denied. 3. If the newly discovered evidence consists merely of additional facts and circumstances, going to establish the same points which were principally controverted before, or of additional witnesses to the same facts and circumstances, such evidence is cumulative, and a new trial shall not be granted. In cases to which these principles clearly and unquestionably apply, the granting or refusal of a new trial is not a matter of discretion. The parties have a legal right to a decision conformable to those principles. Where there is doubt upon the point of negligence, or as to the character of the evidence, or as to its materiality, it becomes a matter of discretion; and the court will not, perhaps I

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