Perley Parker versus William Hardy, 24 Pick. 246

Morton J. delivered the opinion of the Court. The vei diet of the jury was satisfactory to the judge who tried the case. No exceptions were taken to his instructions. But the defendant now alleges that he has discovered new and important evidence ; and for this cause asks the Court, in its discretion, to grant a new trial. The defendant claimed the horse, which was the subject of the trial, by a sale from the plaintiff, by his agent. And the only important inquiry, on the trial, was whether one Smart, who assumed to act for the plaintiff, had any authority.

The newly discovered witness will testify, that “ Parker told me he authorized Smart to sell the horse." This certainly is to the point and important; nor is it open to the objection that it is cumulative. Cumulative evidence is additional evidence of the same kind to the same point. Sawyer v. Merrill, 10 Pick. 18 ; Smith v. Brush, 8 Johns. R. 67 ; Pike v. Evans, 15 Johns. R. 213 ; Sergeant v. Denniston, 5 Cowen, 121 ; The People v. Superior Court of New York, 10 Wendell, 294.

The point, which the defendant labored to establish was, that Smart had authority to sell the horse ; and he relied upon a variety of evidence to prove it. But he introduced no evidence of the plaintiff’s confessions. This therefore is a new kind of evidence. And although it is additional to other evidence tending to prove the same position, yet it is not cumulative, because »it is of a different character, tending to establish the same general result by proof of a new and distinct fact. Gardner v. Mitchell, 6 Pick. 114 ; Chatfield v. Lathrop, ibid. 417.

It is however further objected that we ought not to grant a new trial to let in this new testimony, because the witness is of bad general character and not entitled to credit. Can we receive evidence against the witness ? If so, we must receive evidence in his favor, if offered, and go into a full trial of his character and credibility. This practice would be novel in this State. But if promotive of the ends of justice, we know of no reason why we should not adopt it.

If the evidence went to the competency of the witness, we should of course receive it; for it would show that no new legal evidence was to be offered. And we are not bound to grant a new trial, merely because an individual will swear to some new fact. We must judge of the importance of the fact, and whether in connexion with the evidence already introduced, it will be likely to affect the final result. And why should we not also inquire into the credibility of the new witness ? The additional labor should be no objection, if it tend to promote justice.

Neither the party nor the witness can reasonably complain of a collateral attack of the witness’s character, which they are not prepared to repel. Both are in the same situation as if it were a trial on the merits, and have equal opportunity and are equally bound to be prepared to en counter any competent evidence which may be offered. This practice has prevailed, and been found to be convenient and useful, in other States. Pomroy v. Columbian Ins. Co. 2 Caines’s R. 260 ; The People v. Superior Court of New York, 10 Wendell, 288 ; Ames v. Howard, 1 Sumner, 491. See Graham on New Trials, 7.

This motion is addressed to the discretion of the Court. A very learned and wise English judge says, “ Such applications should be cautiously admitted, as it would be a great inlet of perjury.” Vernon v. Hankey, 2 T. R. 120. The former trial was full and satisfactory ; the evidence now offered is in itself of a suspicious character and comes under suspicious circumstances ; and the witness is shown not to be credible.

To grant a new trial therefore would, in our opinion, open a door for the introduction of perjury, would unnecessarily give the party an opportunity to take a chance with another jury, would increase the expenses of litigation, and might possibly endanger the justice of the case. Judgment on verdict.