Beers v. Root — 9 Johns. 264

Majority

p. 264

Beers against Root.

Headnote

In an action charging'the w1th“dpassing counterfeit after a verplaintiff)» new trial will not be granted to the defendant, of newiyddis) dence*)1'which went merely m support ot a plea oí jusMtieTg the new evidence goes only to the plea of not guilty.

THIS was an action of slander brought against the defendant, for saying that the plaintiff had passed counterfeit bank notes, There were several counts in the declaration. The defendant pleaded not guilty, with notice of a justification. The cause was tried at the Delaware circuit, in June, 1812, before Mr. Justice Van Ness. The jury found a verdict for the plaintiff,

A motion was now made to set aside the verdict and for a new trial, on the ground of newly discovered evidence. The affidavit -- ^ . of the defendant stated, that since the trial of the cause, he had discovered new evidence, which was unknown to him at the time trial i the nature of which evidence was set forth in the affidavit,

Foot, for the defendant.

Sherwood, contra.

The law will not allow a new trial to the defendant, merely to afford him an opportunity to prove the plaintiff a felon. Such an indulgence would not have been granted to the people, if the party so charged had been once tried and acquitted. If the defendant had discovered new evidence which went to the plea of not guilty and that only, it would have altered the case; but we cannot permit him to fish for further evidence to support his plea of a justification of such a charge. The motion must be denied.

Motion denied.