tion, and before any opportunity offered to enable the plaintiff to ask him any questions in explanation, the witness fell down in a fit, and the plaintiff proceeded to examine other witnesses, and try the cause; the court refused to grant a new trial, to give the plaintiff an opportunity of letting in the further testimony of the same witness.1

2

A want of recollection of a fact by a party, which by due attention might have been remembered, is not a ground for granting a new trial. So it is said, that if a witness have, from want of attention, or from not being prepared, made a mistake in giving his evidence, a new trial will not be granted, because this would be extremely dangerous in its consequences. But in other cases this rule is denied, and it is laid down, that if a party be nonsuited, by the mistake of a witness in a material part of his testimony, a new trial ought to be granted.*

The latter rule seems the more reasonable, though the reason assigned for the former, shows that it ought to be cautiously and judiciously applied.

If the testimony of witnesses, which occasioned a verdict, be founded upon, or derive credit from particular circumstances, and those circumstances be afterwards clearly shown to be false, a new trial will be granted.5

1

Depeyster et al. v. Col. Ins. Co. 2 Caines' Rep. 85.

2 Bond v. Cutler, 7 Mass. Rep. 205.

3

Say 27. Steinbach v. Col. Ins. Co. 2 Caines' Rep. 129.

42 Anst. Rep. 517. Say 28. Hewlett v. Cruchley, 5 Taunt. Rep. 277.

Richardson v. Fisher, 1 Bing. Rep. 145.

› Lister v. Mundell, 1 Bos. & Pull. Rep. 427.

SECT. VII.

DISCOVERY OF NEW AND MATERIAL
EVIDENCE.

The most common cause for granting a new trial in our courts, is the discovery of new and material evidence, since the trial.

It is laid down in some of the elementary works upon the subject, that the discovery of a new and material evidence, is never a cause for granting a new trial, in England. This is not correct, though the instances there, are much fewer than they are here. In one case,' a new trial was granted, after a very strict scrutiny, on the ground that the whole of the plaintiff's case was a fiction, supported by perjury, which the defendant could not be prepared to meet, and that since the trial, proofs had been discovered of the iniquity and subornation of the witnesses.

In order to support a motion for a new trial, upon the ground of newly discovered evidence, it ought to be made to appear, that the testimony has been discovered since the trial, or that no laches is imputable to the party, and that the testimony is material; if the party had known of the existence of the testimony, and could not procure it in time, he ought to have applied to postpone the former trial.2

A new trial will not in general be granted, for the purpose of introducing newly discovered evidence, merely cumulative in its character; nor for the pur

2

1 Fabrilius v. Cock, 3 Burr. Rep. 1771.

3

Stockbridge v. West Stockbridge, 13 Mass. Rep. 302.

Vandervoort et

al. v. Smith, 2 Caines' Rep. 155. Hollingsworth v. Napier, 3 Caines' Rep. 182.

3 Smith v. Brush, 8 Johns. Rep. 84. Steinbach v. Col. Ins. Co. 2 Caines' Rep. 129.

pose of impeaching the testimony given at a former trial, by discrediting the witnesses, or by proving them to have been convicted of crimes, which ought to have excluded them from testifying.'

In slander, for charging the plaintiff with a felony, the court refused to grant a new trial, to let in newly discovered evidence in support of the plea of justification.2

A party will not be aided after verdict, or after a report in chancery, or in the case of an award of referees, by a new trial, unless he can impeach the justice of the verdict, report, or award, by facts, of which he could not avail himself in the former trial; or, where he was prevented from doing it, by the fraud, accident, or other act of the opposite party, without any neglect or improper conduct of his own.

If the new evidence go to impeach the whole of the opposite party's case, by the imputation of fraud, a new trial will be sometimes granted; as where payment was sworn to at the trial, by two witnesses, who, there was strong reason to believe, had been tampered with.4

The court will decide upon the materiality of the newly discovered evidence, and grant or refuse the motion or petition for the new trial accordingly.5

1 Hammond v. Wadhams, 5 Mass. Rep. 353. Commonwealth v. Green, 17 Mass. Rep. 515. Commonwealth v. Drew et al. 4 Mass. Rep. 391. Halsey v. Watson, 1 Caines' Rep. 24. Shumway v. Fowler, 4 Johns. Rep. 425. Duryee v. Denniston, 5 Johns. Rep. 248. Rowley v. Kinney, 14 Johns. Rep. 186.

2 Beers v. Root, 9 Johns. Rep. 264.

3 Standen v. Edwards, 1 Vez. jr. 133. Marine Ins. Co. v. Hodgson, 7 Cranch. Rep. 332. Duncan v. Lyon, 3 Johns. Ch. Rep. 356. Bigelow et al. v. Newell, 10 Pick. Rep. 348.

* Shearman v. Wells, S. J. C. 1821. Mss. Peterson v. Barry, 4 Bin. Rep. 481.

Where a material witness, on being inquired of upon the voir dire, testified that he had no interest in the suit, and a verdict was found in favor of the party producing him, a new trial was granted upon newly discovered evidence of his interest, and which also contradicted his testimony.'

SECT. VIII. MODE OF OBTAINING OR PETITIONING FOR NEW TRIAL.

Effect of new trial. If granted after verdict, and before judgment, a new trial vacates the verdict; when granted after verdict and judgment, it vacates both, when allowed on motion.

Of the forms of petitions and motions for new trials, and the manner of proceeding thereon. A petition for a new trial may be presented and heard in any county. It is in the form of a motion, setting forth the causes upon which it is grounded. It may be dismissed, abated, or pleaded to; it is an application to the discretion of, and is heard before, the whole court; and the refusal or allowance of it cannot, therefore, be the foundation of a writ of error.

The question whether a new trial shall or shall not be granted, may come before the court in several forms; when after verdict and before judgment, it is presented usually by motion, or it may be upon the report of the judge merely.

Many questions of great difficulty may arise in the trial, as to the admission of evidence, where no dis

pute exists, as to its truth or bearing, if it be admissible; in such cases, where the jury are not called upon to weigh its credibility, or to make up their verdict. from its contradictions, it is common for the parties to have a verdict rendered by consent, subject to the opinion of the court upon the whole testimony, whether it be admissible or not, or whether the verdict can be sustained, or whether it shall be set aside, and a new trial granted; in this case the court have full power to alter the verdict, or to grant a new trial, each party having the benefit of all exceptions taken at the trial. The judge draws up the report, or what is oftener the case, one of the parties is directed to prepare the report, which is submitted to the other party, and if it be agreed to as correct, the judge signs it; if disagreed to, he corrects it, from his notes taken at the trial; no form of motion would be used in such case. Where there is a trial, and the cause is submitted to the jury, each party is entitled to make his exceptions in the course of the trial, as to the ruling of the judge, to the admission of evidence, and, in short, to every part of the proceedings of the trial, which are contrary to the rules of law, and the practice of the court; the judge who tries the cause, notes the exceptions, and if the verdict be against the party making them, he may then offer his motion for a new trial, setting forth therein, the causes of his exceptions.

Time of making motion. By a rule of the court, it is ordered, that "hereafter, no motion shall be sustained for a new trial, in any civil action, after the verdict of the jury, either on account of any opinions or decisions of the judge, given in the course of the trial, or because the verdict is alleged to be against evidence, or the weight of evidence,