John Halsey v. James and Samuel Watson, 1 Cole. & Cai. Cas. 160

Per Curiam. This is a motion for a new trial, and comes before us, on the ground of a discovery of material testimony, since the trial of the cause.— To see this, and judge whether it be material or not, it will be necessary to state the former testimony and nature of the suit. It is assumpsit by Halsey, the plaintiff, v. James and Samuel Watson, the defendants, as owners of the ship Chesapeake, founded on a neglect in not taking •on board some tobacco, according to contract.

The witness, Heyer, who appears to have acted as agent ■ for the plaintiff, states what the contract was, and the time at which it was to be on board. This agreement appears to have been made on a Friday. The witness inquired of the defendant, James Watson, when the tobacco should be sent down to the vessel. The answer was, send it down as quick as possible : in consequence of which, it was sent the very next day. From three witnesses it is shown, that the principal part of the tobacco was on the dock by eleven o’clock in the forenoon, and, that the whole was ready to be put on board by three.

These facts, then, are established by three witnesses. The captain swears, that, after 4 or 6 hogsheads had been brought, he requested-the cartmen not to bring any more, as there were appearances of a storm. This the principal eartman has, in effect, denied; for he says, he was desired by those on board the ship, or the captain, to bear a hand; and that he got all the tobacco down by dinner time. Here the testimony is contradictory» We are to judge then, if the material evidence, as it is termed, that has been discovered since the trial, be really testimony of materiality.

There is one person who swears, as to the directions given by the caPia*n- The court are of opinion, that this is not material, so as to warrant granting anew trial. This, in two points of view : The testimony goes only to impeach the credit of what has been sworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view, it is not material : nor can it be so in another, unless the defendants can go further. The direction not to bring down the tobacco, was to a cartman. This is not sufficient; as Watson directed it to be sent as soon as possible.

It ought to have been to the owner of the tobacco : or to have shown,- that the request was brought home to the knowledge of the plaintiff: that it was made to a cartman, is not sufficient. The defendant’s affidavit states two other witnesses , who are material; ,but does not say to what facts they would testify : we cannot, therefore, judge, whether, they are materialqr not. Blackmer, it is stated, will testify, thát the tobacco was not marked till Monday. This will only go to impeach the credit of the testimony ; for, three witnesses swear to the, fact of the marking being before one o’clock, on Saturday.

The captain •himself, does not pretend, that the reason for not taking it on board, was the hogsheads not being marked, but only, that he had not time. He does not pretend it was not ready to be taken on board. New trial refused.