Jackson ex dem. Colden v. Chace — 15 Johns. 354

Majority

p. 354

Jackson, ex dem. Colden and others, against Chace.

Headnote

a motion for a Hot7 be heard meat has-been fected;ly PaltheU|round of evidence newly discovered ^nce&ejudg-

' MOTION to set aside the judgment, and the subsequent proceedings, and for a new trial, on the ground of newly discovered evidence. From the affidavits which were read, it appeared, that the suit was commenced in 1807, and after a trial and verdict for the plaintiff, judgment was entered for yie plaintiff, in October term, 1816, there being no order * 7 7 7 ° to stay proceedings, but no execution was issued until sometime in July, last past.

That the new evidence, which it was contended would clearly show a title to the premises out of the lessors of the plaintiff was not known or discovered by the defendant until the 27th of April, last past.

Weston, for the defendant,

said, that under the particular circumstances .of the case, the motion ought to be heard. In Case v. Shepherd, (1 Johns. Cases, 245.) the court allowed the motion to be made after judgment had been perfected, on the ground of a misconstruction of the rule of practice by the defendant’s attorney. In Birt v. Barlow, (Doug. 170.) the court of K. B. allowed the motion to be made, after the four days had expired, under the special circumstances. (Bac. Abr. Trial, L. 1.) In Loft’s Reports, (160.) it is said, that it is never too late to move for a new trial on a new discovery ; which will take it out of the general rule of four days, if you apply in due time after the discovery made.

p. 355

Mitchill and Van Vechten, contra.

A motion for a new trial must be within the first four days of the term, and before judgment is perfected, unless an order to stay proceedings on the verdict has been obtained, which operates as an enlargement of the rule of four days. In no case has a motion for a new trial been heard, after a judgment has been regularly perfected. The case of Shepherd arose soon after the presént rules and orders of the court were made, and the court, under the particular circumstances of the case, of an-alleged misapprehension of the meaning of the 4th rule of January term, 1799', allowed the motion to be made.

Motion denied.