The evidence must not have been used on the former trial. able they did, that other notes had been entered in the books against the company, which is not a fact, it seems to us that this mistake cannot be supposed to have had much weight, because, if the company kept an account of notes, and there was only one note given by them, it would be as probable that that note would be entered in the note book, as in case they had given several. Certainly the mistake, if made, was not very material; and when we consider that the other evidence in the case is very strong in favor of the defendant, as we cannot but see. that it is, we are all very clear that a new trial ought not to be granted." So in Marshall v. The Union Insurance Company.(1) This was a motion for a new trial, on the ground that new and mate rial evidence had been discovered since the trial. The new evi dence consisted of documents, from the custom-house at New York, tending to invalidate some of the testimony given at the trial, and to show that the sale was not bona fide, but a mere cover, and the goods, in fact, not neutral property. By the Court. "This is a rule to show cause why a new trial should not be granted, upon the ground of material evidence discovered since the trial. We are satisfied that the newly discovered evidence was not known at the time of the trial, although the defendant's counsel, upon seeing the New York commission, which only came to hand a few days before the trial, suspected from [469] *some parts of it, that some useful information might be collected. But this would not have been a good reason for continuing the cause. As to the materiality of the evidence, we cannot positively decide; nor, perhaps, would it be proper now to give a positive opinion about it. It may be explained, but at present it appears to have a considerable bearing upon the point on which the cause turns, and we think it ought to be submitted to a jury." Rule for a new trial absolute.(2) And in Myers v. Brownell.(3) Action in ejectment, and ver (1) 2 Wash. C. C. Rep. 411. (2) Vide Hernandez v. Garetage, 16 Mart. Louis. Rep. 419. The evidence must not have been used on the former trial. dict for defendant. The plaintiff petitioned for a new trial on the ground of newly discovered evidence. The opinion contains, in detail, the facts, as sworn to by the witness from whom the newly discovered evidence was expected. Prentiss, J.—“ To entitle a party to a new trial on the ground of new discovered evidence, it must appear that the evidence has been discovered since the trial, that no laches is imputable to the party, and that the testimony is material. The plaintiff swears that the testimony of Wright was wholly unknown to him at the time of the trial, and Wright himself says that the facts within his knowl edge were not communicated by him to any one until after the trial. The evidence, therefore, appears to be new discovered, and we see no ground for imputing laches to the plaintiff. With respect to the materiality of the testimony, there appears to be as little doubt. It is testimony to the declarations of the defendant himself, as to the manner in which the mortgage was lodged in the town clerk's office, and the purposes and objects for which it was left there. The new discovered testimony shows that the defendant explicitly declared that the deed was left with directions not to record it, and the reasons why such directions *were given. No [*470] objection is made to the credibility of the witness, and, on the whole, we think that a new trial ought to be granted." So also Jessup v. Cook.(1) This was a rule to show cause why a new trial should not be had, on the ground that defendant had discovered new and important evidence since trial. It was an action of assumpsit; plea, general issue, and verdict for plaintiff. Boudinot, J.-" As at the trial both parties adduced evidence to this particular point, I think it would be introducing a new rule, and establishing an exceedingly bad precedent, to set aside the verdict and grant a new trial, because one party has since discovered evidence, which he thinks entitled to more weight than any which he had produced at the trial. The jury may very probably have thought, that all parol testimony ought to be disregarded, when set in opposition to the continued and (1) 1 Halst. 434. The evidence must not have been used on the former trial. deliberate acts of the defendant himself; and I cannot bring my self to dissent from this doctrine. If the law were established, according to the views of the defendant, not one verdict in ten would stand. Some corroborating evidence may always be found or made, and, in deviating from the rules by which courts have heretofore been guided, the trial by jury would become the most precarious of all trials. I am, therefore, against the mo tion." Rule discharged. In order to succeed in the application, it appears to be neces sary that the party should mention the witnesses by name, and what he expects to prove, and that either the witness himself should state on oath the evidence he can give, or that the party should add his own belief to the statement made by the witness. Thus, in Richardson v. Backus,(1) action of slander. Upon a writ of inquisition, the jury assessed the plaintiff's dama[*471] ges at $600. After *notice of executing the writ of in quiry, and before the jury had actually assessed the damages, the defendant discovered material evidence, before unknown to him, and which, he was advised, would fully justify the speaking the words charged in the declaration. The affida vit further stated, that the evidence since discovered would prove the truth of the words spoken; but it did not mention the names of the witnesses, nor the particulars of what he expected to be able to prove by them. Per Curiam.-"We think that the affidavit of the defendant ought to have disclosed the names of his newly discovered witnesses, as well as what he expected to prove by them. This would serve for a check against the abuse of general affidavits, after a trial. Let the proceedings, therefore, be stayed until the first day of the next term, that the defendant may have an opportunity, if he thinks proper, to amend his affidavit."(2) And in Shumway v. Fowler, (3) action of trespass on the case, for debauching the plaintiff's daughter, and a verdict found for (1) 1 Johns. Rep. 59. (2) Vide 3 Marshall, 166. The evidence must not have been used on the former trial, the plaintiff for $1,025. The plaintiff's daughter was a witness on the part of the plaintiff. Shepherd, for the defendant, moved to set aside the verdict, and for a new trial, on the ground of newly discovered evidence. He read affidavits, stating that since the trial the defendant had discovered a material witness, who told the defendant's attorney, that before the connection between the defendant and the plaintiff's daughter, he, the said A. B., had criminal connection with her, and also informed him, that another young man had told him that he had previously had connection. with the plaintiff's daughter; and that the defendant also expected to prove the same thing to have taken place between her and another person. The court, having denied the motion on the ground of discrediting the witness, conclude "There is another objection *to the affidavit in this case. [*172] It states merely, that the persons mentioned had told the party what they could say. There can be no reliance on such declarations; nor could the persons, at the trial, be obliged to answer whether they ever had such criminal connection with the daughter. The motion must be denied." So in Denn v. Morrell and others, (1) in ejectment, and verdict and judgment for plaintiff. The defendants moved for a new trial, upon the ground of newly discovered evidence. The affidavit of Cannon, one of the defendants, set forth the particular facts which the defendants expected to prove; and further, that upon a new trial, the deponent would be able to prove the facts. upon which he relied, by Frederick Dibblee, who would testify that the lessor of the plaintiff had, at a certain period long since elapsed, executed a deed in his presence, either a quit claim or a release, (the witness could not remember which,) whereby all the interest of the lessor in the premises was conveyed to one Maria H. Williamson. That said deed was delivered in the presence of Dibblee, but had never been in the possession of the deponent, and as he was informed, and verily believed, it had never been in the possession of the other defendants, but had Party must show diligence. been lost or mislaid in the lifetime of the said Maria. Upon this state of facts, the court held, that the party moving for a new trial upon the ground of newly discovered evidence, was bound to produce the affidavit of the witness from whom such evidence was to come, setting forth the facts, or show that such affidavits could not be obtained. In the present case (they said) there was no ground to suppose that Dibblee would give the testimony detailed in the affidavit, except from the belief of the deponent; and the application was therefore refused. [*473] *So in Shephard v. Shephard.(1) Trespass, and verdict for the plaintiff. The defendant moved to set aside the verdict on three grounds. One was, the discovery of new and important evidence, not known to the defendant at the former trial. Ford, J.-"The newly discovered witness, (Irwin,) is to swear, as is said, that he told the plaintiffs there was an execution levied on the property before he gave them the bill of sale. The evidence of it is, that a Mr. Harman swears he has heard Irwin say so. Facts newly discovered, ought to be laid before the court in the shape of legal evidence, and not hearsay. Many men say things which they dare not confirm under oath. We ought to have more substantial ground for setting aside a ver dict, than a hearsay. I do not know a case where it was ever allowed, but there are many to the contrary." A new trial was refused.(2) III. Party must show diligence. The party applying on the ground of newly discovered evidence, must make his vigilance apparent-for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application.(3) This is a well settled and comprehensive rule, running through all the cases on applications of this kind, (1) 5 Halst 250. (2) Et Vide 1 S. C. Con. Rep. 69, 143; Evans v. Rogers, 2 Nott & M'Cord, 563. |