Barrett v. Belshe

OPINION of the Court, by Judge Owsley. This is an appeal from a decree of the court below, dismissing the bill of Barrett, exhibited for the purpose of obtaining a new trial in an action of ejectment previously prosecuted by Belshe, and in whose favor a judgment had been obtained against Barrett, The grounds alleged in the bill for a new trial are — , 1st, Surprise*, by the production of evidence- on the trial,; and 2d, the discovery of éVídgnce since the ti;jal, „ With respeot to the allegation, hf surprise, there can, he np’doubt but wiiat BaWett has altogether fajilgil ⅛⅜ . [349] shew a sufficient cause for relief. If he was surprised upon the triol at law,"he must have then known it, and as that court was competent to give him relief, he should liaye applied there j but as he has not done so, nor shewn any excuse for his failure, he ought not to be relieved in equity. .Not on the when it is not ftown that if it Afferent reiuit would have '*"lde"c“ g„e, only to impeach the credit of . Nor do we suppose he should he relieved on the ground of a discovery of evidence. 1st, Because he has not shewn by allegation that if the evidence discovered had been used on the former trial, it would even in pro-liability have produced a different result. And 2dly, because the evidence discovered goes only to impeach the credit of one, of the. witnesses of Belshe; and according to the settled doctrine in relation to that subject, for such a discovery a new trial ought not to be grant-eiL~-J5ee 2 Sal, 65» — 3 John, Rep. 2⅛6 — «4 John. 425— 5 John. 248 — Sayer 27. The decree of the court below must be affirmed, with costs.