Manning J.:
The bill is for a new trial on the ground of newly discovered evidence since the rendition of the judgment at law, and for fraudulently obtaining the judgment by false testimony. The latter is not sustained by proof, and *283the newly discovered evidence is Parkhurst’s letter of the 13th September, 1855. This letter shows Parkhurst was mistaken, when he stated on the trial that he did not know the money was placed to his credit until the 6th of October. In giving his evidence, he said he supposed it was placed to the credit of Mr. Hadley, on Morris’s books, and knew nothing to the contrary, until he returned from Connecticut, on the 6th October. The letter shows he must have known it as early as the 13th September preceding. But the discrepancy between his letter and the evidence is immaterial, except that it shows he was mistaken as to time. It does not disprove the only material fact in issue on the trial, namely, that Parkhurst, as Had r ley’s agent, lent the money to Morris; that he took no evidence of the debt at the time, and supposed Hadley was credited with it on Morris’s books. In another particular, however, the letter would seem to. contradict his evidence. He stated on the trial that he had not drawn any of the money, or on account of it. In his letter, which is dated at Pontiac, he says: “ Mr. Hadley was here to-day, and wanted three hundred dollars, and I got it for him of Mr. Weeks, and I hope you will send out the amount this morning by Mr. Norris. You will see by looking on the books, that Mr. Morris got of Yan Sicklin & Co. one thousand dollars, and it was credited to me.” From this, it would seem he not only knew the $1000 had been credited to him, but that he intended to draw against it; otherwise why did he make mention of the $1000, got by Morris of Van Sicklin & Co.? If Morris’s defense had been, that he •had had the money of Hadley through Parkhurst, and that he had afterwards repaid the whole or a part of it to Hadley through the same channel, the letter in question would be material, with evidence showing the $300 had been sent by Norris, to show Parkhurst had drawn that amount for Hadley. But there is ho evidence the $300 were sent by Norris to Parkhurst, except Morris’s books, which are not *284evidence of it against Hadley. This, however, is not the only or most fatal objection to granting a new trial on the ground the newly discovered evidence shows the judgment is for too large a sum.
The theory of Morris’s defense on the trial was, that he had not had any money of Hadley; that the money he had of Parkhurst was Parkhurst’s money, and not Hadley’s. This is wholly inconsistent and repugnant to payments to Hadley through Parkhurst.' A man can not pay what he never owed. And in applying for a new-trial, a defendant who has not been fraudulently misled by his adversary in making his defense (of which there is no pretence in the present case) will not be permitted to change that defense. In other words, having set up one defense and failed in it, a new trial will not be awarded to enable him to make a «wholly different defense, and one which might have been, but was not, made on the trial.
On the issue made on the trial, the letter of the 13th September makes more for Hadley than against him. It by no means shows the money was Parkhurst’s and not Hadley’s. The contrary, we think, is fairly to be inferred from its language. It speaks of Hadley as one known to Morris — known to him through business transactions probably, as Morris says he was not personally acquainted with him — and of the $300 Hadley wanted, as money belonging to him. And after stating Hadley had some flour at Pontiac, says, “which I,” (Parkhurst) “shall sell, and we can have the use of all his money, more or less, all the fall, and it won’t do to disappoint] him. He is a miller, and rich, and will do a large business this fall and winter, and if we are prompt with him, can use his money.” Who is meant by “we,” is obvious, as the evidence discloses the fact that Parkhurst for ’many years had been Morris’s clerk, and had that season, although not then his clerk, been purchasing wool for him at Pontiac, *285and had been entrusted with a large sum of money for that purpose by Morris.
Although the letter of September does not fully square with Parkburat’s evidence, we do not think, as newly discovered evidence or otherwise, it is of such a character as to call for the interposition of a court of equity. The decree of the court below is affirmed, with costs.
The other Justices concurred.