Judge, whether he will entertain or reserve the motion, though it is not usual to refuse. 5. Another ground is the discovery of new and material evidence. It is understood that the Courts in England very rarely grant a new trial on this ground. The effect of their refusal is to compel the parties to make the most thorough preparation beforehand. In our practice, though new trials are frequently granted for this reason, yet the Court require very plenary proof that due diligence was used to obtain testimony; that there were no laches on the part of the party applying, and that he did not know, nor had any reasonable cause to believe, of the existence of such evidence at the time of the trial. If the party knew of the existence of the evidence, at or before the time of trial, and could not obtain it, he should have moved for a postponement or continuance. Stockbridge v. West Stockbridge, 13 M. R. 302; Hollingsworth v Napier, 3 Caines' R. 182. A new trial will not generally be granted for the purpose of letting in newly discovered evidence, which is merely cumulative. The principle is thus stated, and very loosely too in most of the books; and if it be understood to mean that a new trial will not be granted because a party has picked up some additional evidence in his favor, the rule is equally judicious and correct; but if it be understood to mean, that if a party have honestly discovered new and important evidence in his favor, though it be only confirmatory of other evidence actually given, he shall not have a new trial, it is not the true interpretation, certainly not that which is meant by the Court. All evidence is cumulative. It has been defined to be additional evidence of the same kind to the same point, (The People v. The Superior Court, 10 Wend. 294; Parker v. Hardy, 24 Pick. 248,) where it was held, the question being on the authority of a person to sell a horse, that newly discovered evidence that the party confessed that such person had such authority was not cumulative, being of a different kind from the evidence first given. The truth is, that the granting or refusing new trials is a matter of mere discretion with the Judges, and that there neither are nor can be any inflexible rules upon the subject. In the exercise of that discretion, the Judges may well refer or be referred by the counsel to decided cases, which may have some resemblance to the one in hearing, to see how that discretion has been exercised, but they are no further useful. Thus, in the case last cited, the Court heard testimony as to the credibility of the newly discovered witness. The principal question in every such case will be the materiality of the new evidence. Tuttle v. Cooper, 5 Pick. 514. Thus where a witness was examined on the voir dire as to his interest, and testified that he had no interest, and was sworn and gave evidence; it being afterwards discovered, by his own declarations, and those of the party who called him, that he had an interest, a new trial was granted, though the general rule is, that if a party examined a witness on the voir dire he is bound by the answer. Chatfield v. Lothrop, 6 Pick. 417. Other important cases in which this subject has been discussed, are Yarmouth v. Dennis, 6 Pick. 116, note; Gardner v. Mitchell, Ib. 114; Sawyer v. Merrill, 10 Ib. 16; Niles v. Brackett, 15 M. R. 378; Commonwealth v. Greene, 17 Ib. 515; Sawyer v. Merrill, 6 Pick. 478. 6. Another and somewhat questionable ground is the mistake of a witness in material points of testimony. This must be understood to mean, that if the witness himself discover, after verdict, that he has been mistaken in a material point, on his admission and other proof of the fact, that a new trial should be granted. And there may, undoubtedly, be cases in which it ought to be done, though it should be allowed with great caution. Hewlett v. Cruchly, 5 Taunt. 277; Richardson, v. Fisher, 1 Bing. R. 145. In Steinbach v. Columbian Ins. Co., 2 Caines' R. 120, a new trial was refused on the ground, because it would be so dangerous in its consequences. It is difficult to see why the consequences would be more dangerous in this case, than in others where a new trial is granted. It is universally known to the profession that the swearing is always much harder on a second than on a first trial. 7. The last ground upon which new trials are moved, and by far the most common, is the misdirection or omission or mistake of the Judge in admitting or excluding evidence, or in his rulings or instructions to the jury on the trial. Strictly speaking, a new trial is never moved for, on any of these grounds, in our practice. The proper mode of obtaining a new trial in all such cases, in the Common Pleas, is by a bill of exceptions, if it be intended to carry the question to the Supreme Court, or by a report if it be intended to take the opinion of the Court of Common Pleas. Every bill of exceptions is, in effect, a motion for a new trial. So in the Supreme Court, it has been seen that all such questions may be reserved by a bill of exceptions or a report; and these subjects have already been sufficiently considered. A motion for a new trial can be made only while the action is pending, and not after judgment, and it is of course usually made at the same term that a cause is tried. If judgment have been rendered, a new trial can only be obtained on a petition for review. CHAPTER XXXI. WRIT OF ERROR. WHEN a party has lost his case, and has not appealed, filed exceptions, obtained a report, made a motion for a new trial, nor obtained a writ of review, his last desperate remedy is a writ of error. Though this writ has fallen almost entirely into disuse not to say oblivion - (to such an extent that during the twenty years that the writer has been in attendance upon the Courts, he recollects but one instance of a writ of error, in a civil case, and in that it was wholly unnecessary,) yet there are cases in which a party would be remediless, if he could not resort to this mode of reversing an erroneous judgment. A treatise on practice would be imperfect, unless the provisions of the law upon this subject were stated. The Statute of 1840, c. 87, § 4, 5, which is commonly called the jurisdiction act, which prohibits an appeal from the Common Pleas upon the verdict of a jury, specially provides that all questions of law may be carried to the Supreme Court by bill of exceptions or writ of error. It has been held that this statute does not not take away the right, given by Revised Statutes, c. 114, § 13, to a writ of error to reverse a judgment on an award. Day v. Laflin, 6 Met. 280. Final judgments in civil actions in the Common Pleas may be re-examined by the Supreme Court upon a writ of error, and be reversed or affirmed for any error in law or in fact. Rev. Stat. c. 82, § 20. Such writ may be issued of course, at any time, but it does |