Hoffmeyer v. White

The •judgment of the court was pronounced by Rost, J. Judgment having been rendered in favor of the defendant in this case, the plaintiff moved for a new .trial, and supported his motionby.an affidavit, stating that, since the trial, he had discovered testimony important to the caus.e, which he could not, with due diligence, have discovered before, which testi-. mony, says the affidavit, is that of II. Griffon, Esq., who .will testify, ‘.‘that the pretended payment was no.t made to Barrett Lepage, .andthat the entry in their books was an .errordeponent applied to said Griffon before the trial for his -testimony, aud he was then informed by said Griffon that he could not testify, as he was interested ; but deponent avers that .the said Griffon has, since the trial, on (Re 19th day of December, 1846, informed deponent that he has no interest in the suit, and that he has become a competent witness, and will testify to the facts above set forth.” The new trial was refused., and .the plaintiff appealed. We cannot interfere with this judgment. T.he evidence mentioned in the affidavit was not discovered after its rendition, ft was known to .the plaintiff' long before, but he did not callón the witness to .testify, be,cause the latter had fold him that he could .not do so on the ground of interest. This was .a question ,up°n Which the opinion of the court ought to have been had on the trjal, and the omission of the plaintiff in that respect .cannot .be made by him the gro.und of a new trial. We have no means of ascertaining how the supposed interest of the witness Ras ceased; but we are satisfied that applications of this kind should, as a general rule, be discouraged, on account of the great mdu,cenjent which the granting <of them vvould give to false swearing and perjury.. ..Judgment affirmed.