White v. Wallen

By the Court. Benning, J. delivering the opinion. [1.] The order in which a party is to introduce his evidence, is to be regulated by the discretion of the Court. In this case, no special reason was assigned to the Court, for the wish to prove, first of all, the partial failure of consideration pleaded. Had any such reason been assigned, it would, it is to be presumed, have been listened to by the Court. The refusal of the Court, therefore, to let proof of the partial failure of consideration come first, is not to be disturbed. So the second refusal to admit the evidence, is not to be disturbed. When this refusal was given, the state of the defendant’s case, with respect to proof, had not changed. He had tried to prove the note not to have been transferred, until after it had become due; but he had failed to prove it. The ground of the motion for a new trial, viz: newly discovered evidence, was not sufficiently verified. In addition to the affidavit of the party himself, there should have been the affidavit of one, if not of both the Millers. In disregarding a motion resting on no better a foundation than this, we cannot see in what the Court- erred. -