Harrell v. Hill

Wheeler, J. The Court did not err in submitting to the jury at the same time the issues upon the plea in abatement and the answer to the merits. It was in accordance with general practice, (5 Blackf. 208 ; 16 Conn. 436 ; 6 Wend. 649 ; 1 Bibb, [272] 224 ; 6 Pennsyl. 361,) and there is nothing in the Statute which forbids it. Nor did the Court err in refusing the application for a new trial. All the newly discovered evidence, except that of the witness Hill, was merely cumulative; and as to the materiality of that witness, and what he would prove, the application rested on the unsupported affidavit of the defendant; and that does not state that he had used any diligence to become informed of, or obtain the evidence before the trial, or any excuse for the want of it. For aught that appears, the defendant might have known of the materiality of the witness, and obtained Ms testimony upon the trial by the use of proper diligence. There is no error in the judgment, and it is affirmed. Judgment affirmed.