Guyot v. Butts

By the Court, Marcy, J. The principal objection relied on in opposition to the motion is, that the newly discovered evidence is cumulative. I find no case in which a very distinct definition is given of cumulative evidence. The courts have sometimes used expressions seeming to warrant the inference that proof which goes to establish the same issue that the evidence on the first trial was introduced to establish, is [582] cumulative. If the evidence newly discovered, as well as t^at introduced on the trial, had a direct bearing on the issue, it may be cumulative; but we are not to look at the effect to be produced as furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled ; the kind and character of the facts make the distinction. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition, and yet he so dissimilar in kind as to afford no pretence for saying they are cumulative. That the note was paid by the testator, was the simple proposition which the defendants on the trial attempted to. establish by the testimony then offered, and they now wish an opportunity of introducing the newly discovered evidence to accomplish the same object; but the facts by-which they propose to do it are of a distinct character from those which they proved on the trial. The lapse of time between the date of the note and the death of the testator; his ability to pay, evidenced by his being a merchant in active business; the poverty and pecuniary embarrassment of the plaintiffs; their want of credit with the very man who, if their claim is just, was at the same time their debtor, were the essential facts upon which the defence at the trial rested. They only made out a presumption of payment. If the object of this motion was to produce facts of a like character to reinforce ever so strongly that presumption, they must be regarded as cumulative ; but proof that the plaintiffs acknowledged that they had settled with the testator, and included in their settlement the very demand for which this action is brought, is a fact of a different kind from any proved on the trial. Though it is to establish the same proposition (the payment of the note) which was designed to be established by the other evidence, it ought therefore to be adjudged cumulative. I feel the force of the objection to letting in proof of the declarations of the parties. In ordinary cases we should be disposed to take a stand against an application like the present; but there are peculiar features in this case. The suit is for a stale demand; and, considering the situation of the [583] parties, it is somewhat surprising that it should have been kept so long on foot. But what chiefly influences me, is the fact that the defendants are executors, who may reasonably be supposed to be without the means of discovering and collecting facts which the immediate parties to the transaction possessed. As a reason for denying the motion, it is urged that the newly discovered evidence will clash with the testimony given on the part of the defendants. This collision is not perceived to be such as to impair, in any great degree, the credit of the witnesses. It is undoubtedly true, that if the court should be satisfied that the newly discovered facts are wholly inconsistent with those which had been relied on in the first trial, they would not grant another trial for the purpose of laying them before a jury ; but on a motion like this, wo ought not to go into a rigid scrutiny of trifling discrepancies which may be explained, or, if not explained, only produce an abatement of credit among the witnesses. If there be cause for suspecting the integrity of the witnesses by which the newly discovered facts are to be proved, it is the right of the party to have their credibility passed on by a jury whose province it is to weigh and determine the credibility of witnesses. Motion for a new trial granted, on payment of costs by the defendants.