Majority
p. 425Shumway against Fowler. ALBANY, August, 1809. now moved to set, aside the verdict, and for a new trial, on the ground of newly discovered evidence. He read affidavits stating that since the trial, the defendant had discovered a material witness, one A. B. who told the defendant’s attorney, that before the connection between the defendant and the plaintiff’s daughter, he, the said A. B. had criminal connection with her, and also informed him, that another young man, had told him, that he had previously had connection with the plaintiff’s daughter; and that the defendant also expected to prove the same thing to have taken place, between her and another person.
Headnote
A new trial will not the discovery of new evidence merely impeach the character of a witness at the tría!, nor where the affidavit states only, that a person had told the party what he would say‘THIS was an action of trespass on the case, for debauching the plaintiff’s daughter. The cause was tried at the Washington circuit, and a verdict found for the plaintiff, for 1,025 dollars. The plaintiff’s daughter was a witness on the part of the plaintiff, at the trial.
Z. R. Shepherd, for the defendant,
Foot, for the plaintiff.
Shepherd, contra.
A new trial is not to be granted, merely on the discovery of new evidence, which would impeach the character of a witness at the trial. There would be no end of new trials on that ground. (2 Salk. 653. 12. Mod. 584. Sayer, 27. 3 Johns. Rep. 255 .) The newly discovered evidence is to impeach the character of the daughter, who was. a witness at the trial. There is another objection to the affidavit in this case. It states merely, that the persons mentioned had told the party what they coiild say. There can be no reliance on such
p. 426
declarations; nor could the persons, at the trial, be obliged to answer whether they ever had such criminal connection with the daughter. The motion must be denied.
Rule refused.