M'alister's Lessee v. Williams, 1 Tenn. 119

M'alister's Lessee v. Williams

1 Tenn. 119

Tenn. Sup. Ct.

1805

Check Treatment

[S. C., ante, 107.] Ejectment. — Rule to show cause why a new trial should be granted; Joseph Cobb's affidavit was read, stating that he was the real owner under whom the defendant Williams claimed; that it was not in his power to produce his grant at the trial, it being in the possession of John Adair, in consequence of which his tenant could not show any title on the trial; and that he believes if he can get a new trial he can satisfy the Court and jury that he has the best title; that Zachariah King, who lives in the State of Kentucky, is a material witness for him; that he believes he can prove by King that E. Walling showed another tree as the beginning corner of the plaintiff, and, finally, that he has discovered evidence since the trial which, in his opinion, will prove E. Walling, the material witness in this case, to be interested. The position assumed by the counsel, that it will require as strong around to set aside a nonsuit as to grant a new trial, is surely not correct.¹ The setting aside a nonsuit so as to make way for a trial might, with much greater propriety, be compared with the principles which govern the Court in granting continuances, though not strictly applicable. In the case of Sharpless v. Sevier and Harrison, though the suit had been in court three years, the cause had been continued generally, or by consent, until this court, when the affidavit was filed; there was no trial in that case; the affidavit disclosed reasonable exertion to come to trial; unless the plaintiff discovers a disposition to trifle, or such a degree of negligence as to amount to a manifest fault, courts of justice will incline to a continuance upon the first application, and thus avoid dismissing the complaint without a trial, thereby subjecting the party to the necessity of instituting a new suit.

The nonsuit in the other case was set aside upon the ground of surprise. In the principal case a trial has been had, in which the defendant chose to rely upon the weakness of his adversary's title, without producing one of his own. No application was made for a continuance upon the ground of the want of a grant. Where the party voluntarily comes to trial we cannot permit him first to try one method of defence and then another; this would be trifling with the time of a court of justice, and prostrating the most important institution for determining the disputes of men — the trial by jury. It would be too dangerous to allow parties to feel the public pulse through the medium of a jury, and make experiments upon the different points arising in their causes; besides, it is to be presumed that the defendant knew where his grant was before the trial. He certainly must have known whether he should rest his case upon a title or not. If he knew of the evidence, and did *Page 121 not produce it, he cannot afterwards make it the cause for a new trial.

With respect to the discovery of King's testimony, we are of opinion it is not sufficient to set aside this verdict; it is to impeach Walling's credit which was attempted at the trial, but we are clearly convinced without effect; there was testimony confirming his evidence. Walling swore that he was not interested; by the principles of law we are constrained to presume that what he swore was the truth. One attack having been made on his credit upon as strong ground as that made in the affidavit, as it occurs to us, which had no effect either with the jury or the court, we do not think ourselves authorized to grant a new trial upon this ground.² Rule discharged.

¹ Vide 7 Term Rep. 178.

² See 4 Johns. 425, 426; Wil. ed. Bac. Ab. 672.