| Me. | Jul 1, 1873
This was an action of trover for a quantity of ■ wood cut by one Martin upon land of which the defendant was mortgagee, and Martin was the mortgagor. The wood was piled on the mortgaged premises, and the plaintiff, while it was so piled, became its purchaser.
It was claimed by the plaintiff that the wood was cut under a license from the defendant. The issues presented for the consideration of the jury were, whether the wood was cut by the permission and license of the defendant, and if so, whether or not there was a conversion of it by him.
A series, of requested instructions were presented by the counsel for the defendant to the presiding justice, who affirmed their correctness. But while he thus affirmed their correctness, he added qualifications and modifications to render them more applicable to the facts as developed. The defendant had the benefit of the requested instructions, for they were given in the language of the several requests. The court is not required to adopt the precise language of a request, nor is it bound to abstain from modifying it according to the necessities of the case. The real inquiry is, were.the qualifications'and modifications of the requested instructions correct and appropriate ? If so, it was for the jury to determine whether by the instructions as requested and given, or as modified, the plaintiff had a legal right to recover. The defendant is only harmed when incorrect instructions, adverse to his interest are given.
The first three instructions, as modified, require that there should be proof that the defendant claimed title to the wood, forbade the plaintiff entering to remove it, and withheld the same under claim to hold it himself, to entitle the plaintiff to recover. In all it is fully stated that the mere forbidding the plaintiff to enter on the mortgaged premises would not amount to a conversion. This was sufficiently favorable for the defendant. Hinckley v. Baxter, 13 Allen, 139.
The fourth request was given in the language of the request. The additional remarks as reported, do not seem to be applicable,
The fifth request was given as desired, and the additional remarks are only explanatory of issues presented, and afford the defendant no reasonable ground of complaint.
There is no such preponderance of evidence on the part of the defendant as would justify our interfering with the verdict on the motion to set it aside as against evidence.
Before the adjournment of the term at which the verdict was rendered, a motion was made for a new trial on the ground of newly discovered evidence.
The discovery of new testimony immediately consequent on the loss of a verdict must always be looked upon with suspicion. The diligence which is speedily rewarded by the discovery of new testimony after the loss of a verdict, would have been better exercised before such loss in searching for testimony, which the event shows was so readily found that the rendition of the verdict and the fortunate discovery of the new proofs were all but simultaneous in time.
A new trial will not be granted unless it is very probable that injustice has been done. The evidence newly discovered must have been such as the party offering it could not with reasonable diligence have procured, and of which he had no knowledge. It must be material and so material as to induce a reasonable probability that it would, on a second trial, be decisive and productive of an opposite result on the merits.
The evidence purporting to be newly discovered consists mainly of the statements of witnesses who were present at the trial, or of members of the defendant’s family. No inquiries were made of these witnesses previously. The evidence offered is not so mate
The plaintiff is said to be a resident of New Hampshire. The defendant has offered proof that he has brought a suit against Woodis and moves that this case be continued, so that the executions severally to be recovered may be offset, under the provisions of R. S., c. 81, §§ 74, 75. Whether the defendant’s writ will be entered, we cannot know. The question can be presented and determined at nisi prius, if the writ be then entered.
Exceptions and motions overruled.