Duryee v. Dennison

Kent, Ch. J. delivered the opinion of the court. We are of opinion that the testimony of Aikin, as given at the trial, was sufficient to support the verdict. The rule is now settled, that if an endorsor has not had regular notice of non-payment by the drawer; yet if with knowledge of that fact, he makes a subsequent promise to pay, it is a waiver of the want of due notice, and assumpsit will lie. (2 Term Rep. 713. Stra. 1246. 6 East, 16. Hopes v. Alder, note. 7 East, 231. 236, note. Whitaker v. Morris, Esp. Dig. 58. Chitty, 102. Bayley on Bills, 78. Anson and Bailey, Buller’s N. P. 276. Peake’s N. P. 202.) All this was made out by the testimony of Aikin, and the motion for a new trial is founded on affidavits which go to impeach the credit of his testimony. But this ought not to be permitted [250] and the case of Huish v. Shelden, (Sayer, 27.) is strongly to the point. That was a motion for a new trial, on an affidavit impeaching the testimony of a material witness, and the court denied the motion, and said, that it would be productive of the most dangerous consequences, if a verdict should be set aside, because a witness had made a mistake in giving his evidence. The same attempt was before made in the time of Lord Holt, in the case of Ford v. Tilly, (2 Salk. 653.) and equally failed; the court observing, that a new trial is not granted, because the defendant came not prepared. The cases in this court are to the same effect. In Bunn v. Hoyt, (3 Johns. Rep. 256.) the court said that a verdict is never get aside to give the party an opportunity of impeaching the credit of witnesses sworn at a former trial; and the same doctrine was held in the case of Shumway v. Fowler, at the last August term.* There is the stronger reason for the application of the rule in this case, as it appears that the witness alluded to is since dead, and therefore the opportunity for explaining his testimony is for ever lost. The case of Fabrilius v. Cock, (3 Burr. 1771.) was an extreme case not to be governed by ordinary rules. The demand and recovery there, was for the enormous sum of 2,400/. sterling; and the defendant, afterwards, discovered proof to detect the whole demand being founded in fiction, supported by perjury. That was a case of newly discovered testimony. Here the motion is founded wholly upon subsequent conversations with the witness, showing his testimony was not accurately given. It comes fully within the case in Sayer, and it does not appear to be a case justifying a departure from ordinary precedents. The motion ought to be denied. Motion denied,. Footnotes [*] 4 Johns. Rep. 425.