The principles by which this court is governed in granting new trials on the ground of newly discovered evidence were elaborately discussed in The People v. The Supreme Court of New York, (5 Wend. 114, and S. C.) on demurrer to the return to the mandamus, (10 Wend. 285.) The following principles were treated by Chief Justice Savage as settled: “1. That the testimony must have been discovered since the former trial. 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case, and not to impeach the character of a former witness. 5. It must not be cumulative.” It cannot be denied in this case, that the testimony offered is material to the main issue in the cause, nor that it has been discovered since the former trial. The defendant, Clark S. Chittenden, swears positively that he did not give the order to fire, and that at the time the gun was fired he was in his store and hadbeen for twenty minutes before. He could not, therefore, have presumed that any person would swear that he did give the word “fire,” at the time the gun was discharged, which occasioned the injury to the plaintiff, for which this action was brought. He is not, therefore, chargeable with laches in not preparing to disprove the fact of his having given such an order. The testimony goes to the merits of the action and not merely to impeach a witness. Although the effect of the evidence will throw a doubt over this testimony of Young, and thus indir ectly impeach either the accuracy of his hearing or recollection, or his integrity as a man, yet this is not such impeachment as the rule in question contemplates. That rule has in view evidence bearing solely on the collateral issue of character and not the indirect impeachment resulting from the proof of a material fact in the cause. Mor is the testimony cumulative, within the meaning of the rule. The principles applicable to that branch of the subject were discussed by Savage, Ch. J. (Sup. 10, Wend. 293,294.) “Cumulative evidence,” says the learned Judge, “meansadditional evidence to support the same point, and which is of the same character with evidence already produced.” The defendant was not apprized by the pleadings, of the particular evidence that would be adduced *267against him. Nor is it shown, that he knew before the trial, that Young would, charge him with giving the word of command and thus connect him with the battery. This was not the point mainly litigated on the trial, for the defendant swears that he did not know that it would arise until the testimony was given.
The granting a new trial on the ground of newly discovered evidence rests very much in the sound discretion of the court. This discretion is governed by fixed rules. In determining whether a particular case calls for the exercise of that discretion, courts have a right to look at all the surrounding facts and circumstances attending the trial. From the affidavits it appears that this trial commenced on Saturday, at the court house in Canton; that the plaintiff rested his cause about noon of that day, without swearing his principal witness, Young; that the defence occupied the remainder of Saturday and a part of Monday, and that it was not until after the defendant rested on Monday, that the witness Young was introduced by the plaintiff. The affidavit of the plaintiff’s attorney shows that the witness had been in attendance during the entire week. Why was his examination postponed until so late an hour ? The general rule, in the trial of litigated causes, is, for each party to give all his evidence before he rests, and to be confined subsequently merely to evidence in reply. Had this course been adopted here, the defendant would have had the whole of Saturday afternoon and Monday forenoon, to procure from a distance of only eighteen miles, the witness he now seeks to introduce. The course pursued by the plaintiff on the trial gave him not a moment. The main blow was reserved by the plaintiff till the defendant had neither the means to repel it, or to escape from its force.
I am aware that the mode of conducting the examination of witnesses at nisi prius, is, and must be much under the discretion of the judge who presides; and that in country courts, we have not always held the parties to the strictness in this respect, which is almost invariably adopted in the large cities and towns. The better knowledge the counsel and parties have of their witnesses in the country, renders the rigorous enforcement of the rule in question unnecessary, and sometimes oppressive. But, still, it is open to observation that in the present case, the defendant was taken by surprise at the close of the trial, by the testimony of a witness, who, according to the general usage at the circuit, should have been examined two days before. This surprise gives point and force to the present application; and more especially so, when we consider that it was occasioned by the plaintiff himself. Ought he to be permitted to retain an advantage which he has thus unfairly obtained? *268This case presents stronger equities for a new trial on the ground of newly discovered evidence than that of Sergent v. Dennison, (5 Cowen, 106, 122, 123.) In that case it was remarked that proof of an alibi does not fall within the rule of impeaching a witness. The remarks of Sutherland, J., in the conclusion of his opinion, (p. 122,123) bear strongly in favor of the present motion. The case of Shumway v. Fowler, (1 J. R. 425,) and Durya v. Dennison, (5 id. 249,) are distinguishable from this case, and, indeed, afford illustrations of the rule which forbids a new trial merely to impeach a witness on a former trial. In the present case, the motion assumes that Young swore to the truth as to the main fact, that the order to. fire was given and obeyed. It controverts the fact that the plaintiff gave it by showing an alibi; a fact which Suther- • land says, supra, is not matter of impeachment. The fact that such order was given by somebody is not denied, and was indeed proved by other witnesses. Young might well have been mistaken in the person by whom it was given. The defendant, knowing that such order was given by others and not by himself, could not be presumed to foresee that the plaintiff could find a witness, who, at the last moment of the trial, would swear that the defendant gave the order.
With regard to the objection that the plaintiff has not had time to have the case or bill of exceptions settled, it is to be observed that this is not the mode in which it should be taken. He should have moved to strike the cause from the calendar, or to postpone the argument, neither of which was done. The case is shown by the affidavit of the defendant’s attorney to contain all the material evidence that was given on the trial. The plaintiff’s attorney merely swears that “the bill of exceptions is very defective,” but does not show in what respect. The present motion required only a statement of the material evidence given on the trial, in order that the pertinency of the testimony offered might be perceived. As a general rule the better practice is to have the case settled or agreed upon, before such motion as the present is made. But the plaintiff, by going to argument on the merits, has waived a compliance with this technical rule.
Nor is there any force in the objection, that, as the defendants united in the plea of not guilty, and the verdict is against several, a new trial cannot be granted on the application and in favor of one alone. The rule which makes all who unite in the same justification share the same fate, is technical, and was never applied to the general issue. It is competent under the plea of not guilty for the jury to find for one or more of the defendants and against the rest. It is every day’s experience where several are sued for the same tort, for the court to direct the acquittal of *269a part, and suffer the cause to proceed as to the rest. This was done by the learned judge, with respect to one of the defendants on the present trial. See McMartin v. Taylor, (2 Barb. S. C. Rep. 356,) as to this practice. If this may be done, no objection is perceived to the granting of a new trial as to one of several defendants, against whom a verdict has been rendered for a tort.
There must be a new trial granted to the defendant, Clark S. Chittenden, with costs to abide the event. This rule, is usually granted on payment of costs, but as the motion is rendered necessary in consequence, in part, at least, by the plaintiff’s own act, I think he should be excused from costs as the condition for granting the rule, and that they should be left to abide the event.