Crozier v. Cooper

Treat, C. J. To authorize a new trial on the ground of newly discovered evidence, it must appear that the evidence has been discovered since the trial, and that it could not have been produced on the trial by the use of reasonable diligence. The evidence must also be material to the issue, and relate to the merits of the case. And it must not be cumulative, nor go to impeach the character of a witness. These principles are too well settled to require a reference to authorities. There is a fatal defect in the application made in this case. It does not appear but that the defendant, by the exercise of due diligence, could have made full proof of the fact which he can now establish by the testimony of certain persons. It may be, for any thing stated in the affidavit, that the existence of a partnership between him and the plaintiff was well known by others, wffiose attendance as witnesses on the trial he might easily have procured. If such was the fact, there was not the least merit in the application for a new trial. It was a clear case of negligence, from the effect of which he cannot escape. The affidavit sets forth, in substance, that there was a partnership betwmen the parties, and that the defendant has learned for the first time since the trial, that he can prove that fact by certain individuals. It does not, as it should, deny knowledge on his part that the same fact was known to others, whose testimony he might have obtained on the former trial. On a question of diligence like this, a party ought to negate every circumstance from which negligence may be inferred. The judgment must be affirmed. Judgment affirmed.