Ignorance or inadvertence will not be relieved.

to the opinion of the court, upon a case to be made, not supposing that the judgment of the court would rest upon a question of fact. The affidavit then stated, that the defendant was taken entirely by surprise, and that upon a new trial, he could make the question of caution clear in his favor. Per Curiam.-"The defendant has no cause of complaint. He might have submitted all questions of fact to the jury at the trial, if he had been dis

posed to do so, and there was no attempt to influence [*196] him to the contrary. By putting the whole question

to the court, he took no higher risk than the plaintiffs did, and can have no greater rights. If the opinion of the court had been adverse to the plaintiffs, upon the question of fraud, whether in fact or in law, or upon any of the other questions presented by the case, their judgment would have been final. The plaintiffs could not have moved again in the matter, but would have been concluded by their own acts. The defendant's rights in these particulars are the same with the plaintiffs, and he has concluded himself, by voluntarily putting all questions of fact, as well as law, to the court."

Much less will the court grant a new trial to admit evidence which might have been produced by exercising ordinary diligence at the trial.(1)

In Cooke v. Berry.(2) Assumpsit upon a promissory note. Defendant pleaded that the plaintiff accepted of some chests of tea in satisfaction, upon which issue was joined, and there was a verdict for the defendant; it was now moved on behalf of the plaintiff for a new trial, upon an affidavit that the plaintiff took this to be a sham plea, and that he had a letter under the defendant's own hand, wherein it appears the defendant had disposed of the tea to another person, and wherein the defendant. says he will pay the plaintiff his money due upon the note, which letter the plaintiff did not produce at the trial, thinking the plea was a sham, and the defendant could not possibly prove it. But

(1) Vide 5 Wendell, 127.

Ignorance or inadvertence will not be relieved.

per Curiam.-" New trials are never granted upon the motion of a party where it appears he might have produced and given material evidence at the trial, if it had not been his own default, because it would tend to introduce perjury, and there would never be an end of causes if once a door was opened to this. Suppose in a scire facias upon a judgment, the defendant has a release, he is summoned, and has an opportunity [*197] of pleading it and does not, he shall never have an audita querela: this is a very strong case at bar, for the plaintiff has notice of the defence of the defendant in his plea, and ought to have come prepared to falsify it at the trial." And Dennison, J., said he remembered a case of a horse plea, where the defendant pleaded he gave the plaintiff a horse in satisfaction; plaintiff looked upon it as a horse (or sham) plea indeed, but the defendant at the trial proved it to be a true plea.

So in Price v. Brown.(1) Upon payment after the day, and before bringing the action, it was pleaded to be a payment of the principal and all interest then due. On evidence, it appeared a gross sum was paid, which upon computation did not amount to the full interest, but it was sworn that the plaintiff accepted it in full. It was objected that they ought to prove it as they had pleaded; but the chief justice thought it well enough, upon which there was a verdict; and the next term it was moved on affidavits of the falsity of the defence, and that no defence was expected, and therefore that the plaintiff was unprepared to contradict the single witness who swore to the payment of the money. But the court would grant no new trial, saying it would be of dangerous consequence, to suffer people to be setting up new evidence, after they knew what was sworn before.

So in Gist v. Mason.(2) It was contended at the trial, that certain policies were on an illegal trade; but the judge being of opinion that they were not so on the face of them, directed a verdict in support of them; and a motion for a new trial to let

(1) 1 Str. 691.

(2) 1 Term. Rep. 84.

Ignorance or inadvertence will not be relieved.

the defendants into evidence, to prove the trading so notoriously illegal that the plaintiff must have known it, (which was not of fered, on a presumption that the jury must have drawn that conclusion) was refused; as the defendant made the appli [*198] cation to supply his own *negligence, when it was evident that he was not taken by surprise at the trial.(1)

So in an Anonymous case. (2) A similar application on behalf of a party who had made a mistake on the trial, in a point of evidence which would have encountered the evidence given against him, which mistake was discovered since the trial, was refused.

So, in Gilt v. Warner's Adm'r,(3) where a party knowing a witness to be absent, voluntarily risked a trial, it was held that no new trial should be granted, on account of alleged surprise arising from the absence of such witness, no matter how important the facts might have been, which the witness would have proved.

And in Smith v. Morrison, (4) where it was alleged that the party was surprised, by the production of accounts anterior to an alleged settlement, which he could have met by memoranda and receipts in his possession, but which he could not prove at the trial, a new trial was refused, on the ground that by the declaration in the case, the party was apprised to be prepared to meet the previous accounts, inasmuch as the plaintiff was not precluded by it from going into the original accounts, and that therefore in this respect he had been guilty of laches, which deprived him of the right to a new trial.

So, also, in Barrow v. Jones,(5) it was held that the attorney of the party going into the trial unprepared, and suffering a verdict

(1) Et vide 2 Term. Rep. 113, 718.

(2) Fortescue, 40.

(3) 1 J. J. Marsh. 590.

(4) 3 Marsh. Kent. Rep. 81.

Evidence not objected to will be considered waived.

against his client in his absence, furnished no ground for a new trial.(1)

So, in North Carolina, in M'Allister v. Barry, (2) where

a plaintiff, supposing himself ready, pressed for trial, *and [*199] it was found on the trial that the testimony he relied on could not be given in evidence as he expected, and he was nonsuited, a new trial on the ground of surprise was refused.

And in Thompson v. Thompson.(3) The plaintiff's counsel moved to set aside a non-suit which was suffered, because on the trial, the plaintiff offered an attested copy of a bill of sale for a negro, instead of the original, and did not account for the absence of the original. The plaintiff's counsel said that the papers were shown to them on the day before the trial, and it did not occur to them that the original would be required; nor did they remember that it would be wanting, till the, trial came on, and that therefore the plaintiff was surprised, in consequence of their overlooking the objection that was made against them. But, per Curiam.-"This is not surprise, but it is sua negligentia, and the non-suit ought not to be set aside."

So, also, in Arrington's Admr. v. Coleman.(4) When the trial came on, the plaintiff was about to read two depositions of one Philips and his wife, which were essential in the cause, and it was objected that Philips, the witness, was a surety for the costs of the suit, whereupon his testimony was rejected. The plaintiff moved for a new trial, on the ground of surprise, and M'Cay, J., rejected his motion without hesitation.

VII. Evidence not objected to will be considered waived.

If evidence be not objected to when offered, it will be considered as waived, and cannot sustain a motion for a new trial, under the pretext of surprise or mistake.

(1) Et vide 2 J. J. Marsh. 85.

(2) 2 Hayw. 290.

(3) 2 Hayw. 405.

(4) Ibid. 300.

Evidence not objected to will be considered waived.

So held in Abbott v. Parsons.(1) labor. Defendant pleaded an off-set.

Assumpsit for work and "Cash to Mann, for flour,

£18 6s." At the trial before Gaselee, J., the evidence in [*200] support of this item was, that flour to that *amount had been furnished by Mann to the plaintiff; that Mann, many months before the action, sent his bill into the plaintiff, when the plaintiff's wife complained to Mann, and told him to look to the defendant; since which time no demand had been made on the plaintiff. When the judge was summing up, and not before, the counsel for the defendant objected that this evidence did not support the particular of set-off. The learned judge, however, left it to the jury to say whether Mann had been paid, and a verdict was found for the defendant. On motion for a new trial, on the ground, among others, that the evidence did not support the above item of off-set, per Tindal, Ch. J.-"It has been objected, on the part of the plaintiff, that the defendant's claim, in respect of the payment to Mann, has not been so de. scribed in the particular of set-off as to entitle the defendant to take advantage of it under the evidence which he has given, But it is of the first importance to the administration of justice, that objections of this kind should be made when the evidence is offered, and that the party should not lie by to speculate on the accidents of the cause. Here the objection was not taken till the judge began to sum up to the jury, and the plaintiff's counsel began to feel the effect of his observations. It is clear from the evidence, that Mann can make no demand on the plaintiff, and the cause ought not to go down again." Park, J.-"The objection ought to have been made when the witness was called to prove the set-off, because then the evidence might have been admitted or rejected, as the case required.(2)"

The same rule was adopted in this state in Sherman v. Crosby.(3) Assumpsit on a promissory note. The defendant pleaded nonassumpsit, with notice of set-off. In support of the set-off

(1) 7 Bingham, 563.

(2) Et vide 2 Taunt. 217, in notis; 5 Pick. 217; 5 Monroe, 177.