| R.I. | Sep 6, 1857
We are quite content with Blackstone's rule, that a motion for a new trial, on the ground of a verdict against the evidence, ought not to be granted "where the scales of evidence hang nearly equal; that which leans against the former verdict ought alwaysvery strongly to preponderate." 3 Black. Com. 332. Upon a careful review of the evidence in this cause, we cannot say that, taken all together, it very strongly preponderates to prove the issue, that there was a way through the Johnson farm appurtenant to the Damon farm. The way was claimed to be proved only by user; and the defendant's title not being twenty years old, he was obliged to tack to his own user that of Arthur Damon, his immediate predecessor in the title. Unfortunately for his claim, Arthur Damon, though he used the way, swears that he never claimed any right to do so, but should have yielded his use to any objection on the part of the owners of the plaintiff's farm. If we go back of Arthur Damon, upon the *26 ground that he might, though ignorant of its existence, transmit from his predecessors to his successor in the title, the right now claimed by the defendant, we find no very strongly preponderating evidence to prove the issue made. The evidence tended to prove rather, that in that region, and in early days, every one went everywhere, and so along the path in question, whenever he pleased, and without objection, rather than that the owners of the Damon farm used the path, claiming the right to use it as appurtenant to that farm. We cannot say that the jury might not fairly conclude upon the proof, as well, that by neighborlysufferance the owners of the Damon farm used this way, as any of the other ways through adjoining farms once used by them, and to which no claim of right to use is now made. The proof was fully discussed before the jury, and fairly left to them. Looking at the matter in issue, I should not have been dissatisfied with a verdict either way; and, as well from the state of my own mind when presiding at the trial, as from the fact that juries have twice failed to agree in this cause, and have once brought in a verdict for the plaintiff and once for the defendant, am led to conclude, that the defendant, upon whom was the burden of proof, failed to make out his case in matter of fact, as clearly as he should do, to entitle him, or at all events to disentitle the plaintiff, to a verdict.
The other ground for a new trial, to wit, the discovery of new and further testimony, is not supported. The testimony is not "new and further," but cumulative merely; nor has it beendiscovered since the trial, in any proper sense of that term. The defendant, now permitted by law to be a witness, merely swears that he recollects something which he did not recollect, when on the witness-stand. Recollection is not discovery. The former deals with the known, the latter with the unknown; and if the forgetfulness of a witness, and especially of a party-witness, were to afford a ground for new trial, it would be quite too convenient and tempting in many ways, to be consistent with the purposes of justice.
Motion denied with costs. *27