Stearns v. Allen

The opinion of the court was delivered by Williams, Ch. J. The plaintiff does not rely on his exceptions, but asks for a new trial. The court rarely gr.ant a new trial for new discovered evidence. It appears there were three trials in the case in the county court, and the ground of defence was fully disclosed on the two last trials. At the trial in October, 1843, the petitioner had an opportunity of seeing the note, and must then have known, whether the entry above the indorsement, “ demand and notice waived,” was put there when he signed his name as indorser. He had every opportunity to produce the proof, which he now relies on, at the trial in May, 1844; with due diligence he might then have produced all the evidence, which he now exhibits. There are no merits in his petition, therefore, on this ground. Farther, the testimony now produced is by no means conclusive, and I may add, that it is not satisfactory, to prove that those words were not put on the note with the consent of the plaintiff. The judgment of the county court must therefore be affirmed, and the petition for a new trial dismissed, with cost.