It is not often that a question of the kind, raised by the case before us, arises in the practice of the courts of this State. The right of review, by which the lasing party, on issue joined in a civil suit, may, on certain conditions, again try his case after being once defeated, being given by the statutes of this State, the many questions, which have arisen in other jurisdictions where this right does not exist, have not been considered here. Parties who are defeated on the facts, generally resort
In many jurisdictions the subject has been repeatedly and fully considered; and among them there appears to be very little, if any, diversity of opinion in regard to it. The doctrine of the courts of England, and of this country generally, is substantially the same. A few exceptions only, and those arising out of the peculiar circumstances of each case, are to be found. The following general,principles are clearly deducible from the authorities, and may be laid down as well-established law. First: The evidence must be new ; such as was not used on the former trial; such as either had no existence at the former trial, or the party did not at the time of the trial know was in existence. And this point, the ignorance of the’party as to the existence of the evidence, as it lies at the foundation of the application, must be made clearly to appear. Second: It must be material to the issue joined ; material to the point to be decided by the verdict, and not collateral. It must go to the merits of the case, and not to discredit or impeach a former witness. Third: It must appear that the party has used all reasonable diligence ; that he has been vigilant in seeking both to discover and to procure the evidence. Fourth: It must not be cumulative. In most of the decisions upon motions of this kind, these general positions are discussed and decided, although the precise point raised in each case may not require a decision of the whole. Among the numerous cases to be found upon the subject we cite the follow
In New York, and perhaps elsewhere, a few cases may be found which, at first, would seem not to come fully up to the positions above laid down. But an examination of them, as reported at length, will show that they do not impair the general doctrine. Rowley v. Kinney, 14 Johns. 186, and Jackson v. Hooker, 5 Cowen, 207, are among them. This class of cases relates to “ military lots.” In the first case, the court say: “As a general rule, we should refuse granting new trials on the grounds furnished. We have, however, repeatedly, in trials concerning military lots, been more liberal in granting new trials, owing to the obscurity and multifarious frauds attending upon those titles, and especially when the question turns upon the identity of the soldier, from whom the title is claimed to be derived.” In the other case, the court remarks, “ This class of cases is considered peculiar, and as exempt from the ordinary rules in relation to granting new trials.”
Applying the general principles, above laid down, to the case under consideration, we find that the facts set forth in the affidavit upon which the motion for a new trial is predicated, do not come within any principle recognized as a sufficient cause for setting aside a verdict. In the first place, it does not appear that the evidence is new, or that Carr had not, at the time of the trial, full knowledge of Barden’s feelings towards him. Webster
According to some very respectable authorities, even if he did not know it, his ignorance of the fact manifested a want of diligence in ascertaining it, which a court would not overlook; it should have been ascertained when Barden was on the stand. In Wright v. Alexander, 2 Smedes & Marshall’s (Miss.) Rep. 411, it was held not to be good ground for a new trial, that the defendant had discovered that he could have proved the payment of the note sued on, by a witness used on the trial; that, by due diligence, he could have obtained the knowledge befdre the trial; or, by proper interrogatories, have established the fact at the trial. And in Fanning v. McGraney, 1 Iowa Rep. 389, it is laid down as a general rule, that where newly-discovered evidence is expected to be proved by a witness who was called and examined, no new trial will be granted; as the extent of the witness’s knowledge should be ascertained when on the stand. To these cases may be added, Bell v. Thompson, 2 Chitty’s Rep. 194; Vandervoort v. Columbian Insurance Co. 2 Caines, 155; Commonwealth v. Benesh, Thacher’s C. C. Rep. 84; Bennett v. Commonwealth, 8 Leigh’s Rep. 745; The People v. Vermilyea, 7 Cowen, 369.
But it is not necessary to place our decision upon this ground;
New trials will be granted for misconduct in the prevailing party; for mistake or error in the admission or rejection of evidence ; for irregularity in the conduct of the jury ; for error in the instructions given by the court; and for newly-discovered evidence, where a proper case is made out. But, in deciding motions for new trials on account of newly-discovered evidence, courts have found it necessary to apply somewhat stringent rules, to prevent the almost endless mischief which a different course
In the present case, the facts presented not coming within any of the principles upon which new trials can be granted, there must be
Judgment on the Verdict.