Denn ex dem. Hughs v. Morrell

Headnote

Upon an application for a new trial, on the ground of newly discovered evidence, where such evidence rests in the knowledge of a witness, the Courfwill require the party moving to produce an affidavit of the witness, setting forth the tacts upon which he relies, or to show that it could not be obtained.

This was an application for a new trial, upon the ground of hewly discovered evidence. The original action brought by the the plaintiffs, was an action of ejectment, to recover one third part of a house and lot of land, situated in the city of New-Yorlt. Upon the trial, the plaintiffs had a verdict, subject to the opinion of the court, upon a case to be made, and upon the argument of the case, the court gave judgment in favour of the plaintiffs. The defendants now moved for a new trial upon the ground of newly discovered evidence. The affidavit upon which the motion was founded, was made by John M. Cannon, one of the defendants, and it set forth th e particular jacts, which the defendants expected to prove, if a new trial were granted. It stated also, that a fortnight after the trial of the cause, the deponent “ discovered new “ and material evidence in favour of the defendantsand further, that upon a new trial, the deponent would be able to prove the facts upon which relied by Frederick Dibblee, Esq., of the city of New-York, counsellor at law. It was also stated by the deponent, that the witness would testify, that the lessor of the plaintiff had, at a certain period long since elapsed, executed a deed in his presence, either a quit claim or a release, (the witness could not remember which,) whereby all the interest of the lessor in the premises was conveyed to one Maria H. Williamson. That said deed was delivered in the presence of Dibblee, but had never been in the possession of the deponent, and as he was informed, and verily believed, it had never been in the possession of

the other defendants, but had been lost or mislaid in the life-time of the said Maria. '

It was objected to this application, J

I. That the affidavit did not contain any allegation of the deponent’s ignorance of the fact, that Dibblee could testify to the matters detailed until after the trial.

II. That there was no affidavit of Dibblee.

III. That there was no affidavit of the other defendants as to the loss of the deed. And [3 Caines’ R. 186. and 8 J. R. 489.] were cited.