orally.—There was testimony tending to show that, whatever may have been the plaintiff’s misconduct, the defendant had information of it; and that he, nevertheless, continued his visits and attentions to her.
The jury were instructed that the defendant would not be excused from the contract, if he continued it in force, after he, had knowledge of her misconduct.
It is argued that the ruling was erroneous, because it required the plaintiff to believe or pre-supposed him to have believed, whatever rumors he might hear.
But the ruling did not relate to rumors, which he might have heard. It related to knowledge, which he possessed.
If, after knowing of her conduct and character, the defendant continued the original contract in force, or made a new contract to marry, there is no principle of law, which can relieve him from performing it.
The Judge did not assume to instruct the jury, what, or how much, evidence was necessary, in order to prove that the defendant had the knowledge. That matter was left wholly with them.
Exceptions overruled.
The defendant moved for a new trial on the ground of newly discovered evidence. To sustain the motion, he offers *277not testimony, but affidavits merely. This is not according to the practice. We can therefore consider the motion merely in the light of a proposition to postpone the case, till the testimony can be had. But we have examined the affidavits. If put into deposition form, they would not constitute a sufficient ground for the ordering, of a new trial. It is mostly cumulative. We do not say that a new trial cannot, in any case, be granted on the ground of evidence merely cumulative.
The ground of the rule is that, as the matter was before the jury, and they had viewed the features of the case, it is to.be presumed the evidence proposed to be added, on the very point before them, would not have altered their conclusions. It is, however, conceivable that evidence might be introduced, such as would lead the jury to a different result. But for that purpose the evidence must be very strong. Besides, unless the rule was quite stringent, there would be no end to litigation. But some of the affidavits state facts, not of the cumulative character. To them, another principle is deemed applicable, which is, that a case will not be opened to a new trial, unless the court should think it probable the new evidence would alter the verdict. Such is not our impression in this case. Motion for new trial overruled.