Keet v. Mason

Morton, J. The defendant asked a ruling “that the motion and affidavits do not make a case in law for a new trial.” The court did not rule as thus requested, but having been influenced in its finding by the testimony of one Robbins in reference to an alleged cohabitation by the plaintiff with his wife after her seduction by the defendant, and “ being of opinion that the evidence, — 156 — as outlined by the affidavits, if given and believed, would materially change the finding, set the finding aside and ordered, a new trial.” The defendant contends that the evidence disclosed by the affidavits was cumulative, and might have been discovered by due diligence before or during the trial. But assuming that to be so, it would not follow, as matter of law, that the court had not the power to set aside the finding and grant a new trial, if satisfied that justice required it to be done. The court did not rule that newly discovered evidence, which was cumulative and which might have been discovered by due diligence, would justify setting aside the verdict as matter of law, and was not asked in terms so to rule. What it did was to decline to rule that, as matter of law, the motion and affidavits did not make out a case for a new trial, and then to set aside the verdict because, having tried the case itself, it was convinced that the evidence, if believed, would have materially changed the result. This it had the right to do in the exercise of a sound discretion, even though the evidence was cumulative and might have been discovered by-due diligence; Ellis v. Ginsburg, 163 Mass. 143 ; and as we interpret the bill of exceptions, this is what it did, and we cannot say that there was an abuse of its discretion. Whether in all cases where a new trial is sought for newly discovered evidence, which is merely cumulative and might have been discovered by due diligence, and there is no exercise of the discretionary power, it should be refused, no matter how convincing such evidence may be, is a matter which we do not find it necessary to consider in this case, and on which we express no opinion. Exceptions overruled.