The defendants in their third answer set up an agreement between defendants and the plaintiff that the plaintiff should not charge the defendants with the costs of an appeal to the general term, but only with plaintiff’s traveling fees, in case the defendants failed to succeed on that appeal. Upon the trial they testified to such an agreement, stating when and where it was made, and who was present when it was made.
The plaintiff testified that no such agreement was made in regard to that appeal; that there was an agreement in relation to a subsequent appeal from the decision of the general term to the court of appeals, and that this last agreement was the only one made. The referee found in accordance with the defendants’ testimony, and the plaintiff now moves for a new trial, on the ground that he has discovered evidence that he was not present at the time when and place where the defendants testify the agreement they set up was made; and, also, evidence that at the time the *272agreement." was made in regard to the second appeal to which plaintiff testified, there was an agreement made in substance like that proved by the plaintiff.
This evidence applies to the fact principally controverted on the former trial, and within the cases must be regarded as cumulative. (10 Wend., 285, 293-4.)
The. rule is well established that a new trial will not be granted to enable a party to introduce such evidence.
The order of special term should be affired with $10 costs.
Motion for review at general term, held at Caldwell, Warren county, July, 1862.
Mr. Adams, the appellant, now moves that the decision and order of affirmance, in the appeal in this cause, be vacated, and for a re-argument and review of the appeal upon the grounds:
1st. That the decision and order of affirmance, as the same appears from the opinion of the court, per Mr. Justice Rosekrans was made under a misapprehension or mistake of the facts of the case.
2d. That the same was made under a misapprehension or mistake of the law of the case.
3d. That, even if the facts assumed and stated in the opinion of the court be correctly stated, the authority (10 Wend. R., 285, et. seq.,) cited in the opinion to support the decision, is an authority against the decision and -is in favor of the appeal.
4th. The decision is against the law of the land.
The appellant insisted that the court, as it appears from the opinion of Mr. Justice Rosekrans, has fallen into a very palpable error in its decision, and, if such be the case, it is unquestionably the duty of the court, as an act of justice to the parties, as well as from a commendable respect for the law of the land, to retrace its steps and correct the errors it has committed.
*273Mr. Adams stated the leading features of the case, and then read the opinion of Mr. Justice Rosekrans at length.
Rosekrans, J.—When I wrote that opinion, sir, I knew just what I was writing about. I was under no misapprehension about the facts or the law, and the decision is correct within all the decisions.
Adams.—I will show that the opinion is unfounded in its statement of facts, and will prove by the very authority cited in the opinion to uphold it, that the decision is entirely erroneous.
Potter, J.—-You should appeal from our decision; it would be opening a very wide door to allow parties to come in here and ask us to review all the errors we commit in our decisions.
Adams.—It would indeed be opening a very wide door, but so long as no appeal has been taken the court has jurisdiction over its own orders, decrees and judgments, and it is clearly the duty of this court to correct its errors, numerous as they may be.
Rosekrans, J.—-You should appeal from our decision if it is erroneous.
Adams.—No appeal has been taken, and the case is still pending in thie court, and I claim that the error should be corrected by those who made it.
Rosekrans, J.—Gan’t you appeal ?
Adams.—-That is too profound a question for me to answer at present.
Rodees, J.—It is a grave question whether an appeal will lie from such an order; my impression is that the order is not appealable, and I think this motion should be heard, otherwise we may do great injustice.
Mr. Adams then proceeded with his argument.
1st. The court very improperly assumed that the plaintiff testified that “ there was an agreement in relation to a subsequent appeal from the decision of the general term to *274the court of appeals, and that this last agreement was the only one made.”
There is no such thing in the case, hut it distinctly appears that at the time of the contemplated appeal to the court of appeals, (fourteen months after the time of the alleged agreement) when P. Gr. B. declined to go further, the plaintiff proposed that if they would go to the court of appeals the plaintiff would charge them nothing hut disbursements if he did not succeed; and that was the only conversation in reference to an agreement, &c. But the plaintiff did not state or pretend that the proposal was accepted or acted upon by the defendants, and the defendant, J. GL B., did not pretend that he recognized the same as an agreement ] and the defendant, P. Gr. Bush, distinctly repudiated the proposal, and even denied plaintiff’s saying one word to him about the court of appeals, and the case shows that no appeal was brought and no services or disbursements were rendered therein.
2d. The opinion assumes that the motion was inter alia, to prove “ that at the time the alleged agreement was made in regard to the second appeal, to- which plaintiff testified (as the opinion states) there was an agreement made in substance like that proved by the plaintiff.”
There are three errors in this paragraph of the opinion.
1st. No such agreement vas made in regard to the second appeal, nor anything like it.
2d. Plaintiff did not testify there was such an agreement, nor anything like it.
3d. The object of the motion was not to introduce evidence (as the court has assumed) “that at the time, Ac., (or any other time) there was an agreement made in substance like that proved (as the opinion states) by the plaintiff.”
No such facts appear in the case.
3d. The opinion assumes “ this evidence (as stated in the opinion) applies to the fact principally controverted on the former trial, and within the cases must be regarded as cumulative.” (10 Wend. R., 285, 293-4.)
[.Rosekrans, J.—Just call that cu-mu-Ia-tive, and then we will understand what you are talking about.
Adams.—Cu-mu-la-tive? Very well, if that will facilitate the understanding of your honor as to the merits of the question, I will adopt the suggestion.]
This paragraph of the opinion is not in any wise sustained by the facts in the case.
1st. The defendants testified to the alleged agreement, and insisted it was made before the appeal to the general term in April, 1859, and stated time, place, oircumstanoes and conversations. This was to disprove and avoid several hundred dollars worth of services and disbursements.
2d. The plaintiff testified to a proposal made June, 1860, fourteen months after the time of the alleged agreement, to appeal to the court of appeals, which proposal was not accepted but was repudiated by the defendants, and n6 appeal was brought and no services or disbursements rendered therein, and the proposal was not *275acted upon. Did that proposal, involving nothing, relate to the agreement set np as the third defence involving several hundred dollars which the defendants sought to avoid by their own false testimony?
The facts need but to be stated to show the utter misapprehension of the justice in his statement of both the facts and the law, and the error of the decision.
Rosekrans, J.—I was under no misapprehension, sir, about the' case. I understood just what I was writing about when I wrote the opinion.
Adams, appellant, then read the evidence from the case, proving that there was no agreement but that a proposal was made as to an appeal to the court of appeals as above stated.
Rosekrans, J.—It was that fact to which I alluded in the opinion.
Adams.—But you have throughout the opinion assumed that the proposal made by the plaintiff was an agreement, and that it related to the agreement testified to by the defendants, made fourteen months before the proposal. How can this be sustained ? The assumption is groundless.
Rosekrans, J.—I will amend the opinion by calling it a proposal, instead of an agreement, to appeal to the court of appeals.
4th. The substance of the motion stated was shortly this, to prove by newly discovered evidence of the witness Davis,
1st. An alibi of the plaintiff on the occasion, testified to by defendant J. Gr. Bush, when Davis executed the understanding at plaintiff’s oEce, April 23, 1859, for the appeal to the general term, that being the time and place the defendant J. G-. Bush pretended the agreement was made.
2d. To prove, inferentially at least, an alibi of P. Gr. Bush on that occasion, if that was the occasion he referred to in his testimony.
3d. By the newly discovered evidence of Huffnail an alibi of both defendants on the occasion when Huffnail executed the undertaking, April 22, 1859, if that was the occasion intended by either of defendants when the pretended agreement was made, and it was not pretended by either of them that any agreement was made on any other occasion than the signing the bond for the appeal to the general term.
Not one syllable of evidence was offered by the plaintiff on the trial to prove an alibi of either of the parties, and the proposed new evidence of Davis and Huffnail is to *276entirely new matter which was in no wise drawn in question on the trial.
5th. Now for the sake of the argument we will assume that the facts are correctly stated in the opinion of the court, so far as they go, then the very authority (10 Wend., 285, et seq.,) upon which Mr. Justice Boseioians predicated this opinion overthrows it and proves that the order of the special term should have been reversed.
1st. The definition and illustration given by the court (p. 294) to show what is cumulative testimony, overthrows the opinions and decisión of the speóiál and general terms in this case".
2d. The comment and conclusion of the court (pp. 294, 295,) upon the case of Steinback agt. The Col. Ins. Co., (2 Caines, 129,,) which case was the chief corner stone of the special term decision in this case, proves that that case (2 Caines, 129,) in the midst of the multitude of authorities cited in the appellant’s points, was of less importance than a mouse in a menagerie.
3d. The views and illustrations of the court (pp. 296, 297,) upon the case of Sargent agt. Denniston, (5 Cow. R., 114, 122,) prove that newly discovered evidence to prove an alibi is not cumulative, however numerous may have been the other facts proved or litigated on the trial. Those two cases settled that principle, and are direct and irresistible support to the casé of Seeley agt. Chittenden, (4 How. P. R., 265) which latter case was so directly and energetically repüdiatéd in the special term opinion.
4th. The comments, illustrations and conclusions generally of the court in that case, (10 Wend. R., 285, et. seq.,) are in perfect harmony with thé stréain of authorities cited by the appellant in his former points from 3 Burr, 1771, down to the 34 Barb., 291, embracing more than twenty decisions, pronounced by the most eminent judicial minds that ever adorned the bench, and prove that the appellant should have had his motion.
It will be seen that the opinion of his honor, Justice Boseioians, was upon an assumption that facts wére proved which Were not proved; that evidence was given or proposed which was not given or proposed.
It will be seen, also that upon the law the opinion is in direct conflict with the stream of judicial authorities plainly and distinctly presented by the appellant, bearing directly upon the question involved, from Lord Mansfield (in 3 Burr, 1771,) down tó the eminently just and judicious opinion, per Allen, J., in Platt agt. Munroe, (34 Barb., 291.)
It will also be’seen that the opinion of his honor, Justice Bosekrans, is directly at war with the very decision (in 10 *277Wend. R., 285, et. seq.,) which, is cited in that opinion as the authority for this decision.
If the opinion was right, it was casually right, as it was upon an erroneous assumption of facts nowhere appearing in the case, and upon a mistaken view of the authority cited in the opinion to uphold it.
But the appellant insists the opinion is in disregard of the numerous direct and controliug authorities cited by the appellant, bearing upon the precise question involved in this case, and upheaves and overthrows the law as it has been defined and applied from the days of Lord Mansfield down to the decision per Allen, J., (34 Barb., 291,) and, such being the true state of the question, in the language of Comstock, J., (Tracy agt. Talmadge, 14 N. Y. R., 210,) “ it is plainly the duty, as I have no doubt it will be the pleasure of the court, to retrace its steps and correct the errors it may have committed.”
The decision should be reviewed and the order should be reversed.
Rosekrans, J.—The defendants set up as a defence a special agreement, and on the trial they testified to such an agreement.
The plaintiff testified that he made no such agreement. The referee gave his decision upon the number of witnesses instead of the weight of evidence and the probabilities of the case as he should have done.
The plaintiff has since discovered new evidence to prove that he was not present at the time and place the defendants testified the agreement was made. This evidence is adding to or heaping up upon his evidence, denying that he made any such agreement. It is, therefore, cumulative within all the reported cases, and I do not wish to hear any further argument upon the subject; if my brethren do, they can say so.
Potter, J.—I don’t wish to hear any further argument upon the subject.
*278The motion should be denied.
James, J.—Further argument will be unnecessary. We investigated the question fully at the last term, and we hold that this evidence is cumulative within all the decisions.
. Adams, appellant.—Within all the decisions? There is not a decision in point in the United States or England to uphold such a decision, or that tends in the slightest degree against the motion for a new trial. Even the case cited in the opinion (10 Wend. R.,) is point blank against the decision.
How can you get around the definition and illustration of the term cumulative, as given by Savage, C. J., on page 294?
What do you make of the criticism passed by Savage, C. J., (pp. 294-5,) upon your special term authority? (2 Caines, 129.)
That case as an authority here is whittled down to nothing.
How can you avoid the force of the comments and illustrations of Savage, C. J., (pp. 296-7,) upon the case of Sargent agt. Denniston, (5 Cow. R., 114-22,) proving that this newly discovered evidence to prove an alibi is not cumulative evidence?
How do you get over the stream of authorities I presented to the court in my former points ? Are we to have a decision founded upon the law, or upon mere will ?
I insist there is no case in the United States or England tending in the slightest to support this decision.
The cases in 2 Caines and 10 Wend. do not support it, and the authorities are universally against it.
Rosekrans, J.—We deny the motion, but without costs.
Potter, J.—I do not see any reason why he should be exonerated from costs. He should pay costs.
Rosekrans, J.—The motion is 1 denied with $10 costs. Order entered accordingly.
*279Bockes, J.,took no part in the decision.
Note .—The following is the pith of the decisions referred to by the appellant:
1st. After a trial and verdict for plaintiff for damages, £161, a motion for a new trial on the affidavit of defendant’s attorney, stating that the defendant sailed for a foreign port, &c., and that since the trial and absence of the defendant he (the attorney,) had discovered in a memorandum book of the defendant a receipt. On the special "circumstances of the case, and the discovery of very material evidence above stated, the court made the rule absolute for a new trial. (Broadhead agt. Marshall, 2 Black., 955.)
2d. If credit given to the former witness arose from circumstances which are falsified by affidavit, a new trial may be allowed. The court observed that though it was unusual to grant a new trial on evidence contradicting the testimony on which the verdict had proceeded, discovered subsequent to the trial, yet as the very facts on which those witnesses had founded themselves were falsified by the affidavits produced, they thought it afforded a sufficient ground for a new trial, and accordingly granted a rule nisi*
The affidavits could not be contradicted and therefore the court made the rule absolute. (Lister agt. Mundell, 1 Bos. and Pull., 42; see the note in appellant's first points, of the case of Fabrilius agt. Cock, 3 Burr, 1771, approved in 5 John. R., 250.)
3d. The court has a right to direct a new trial if it sees that justice cannot be done in consequence of the facts not having been fully investigated at the trial. (Barstow agt. Reynolds, 37 Eng. L. and Eq. R., 468.)
4th. The newly discovered evidence must be material and of a decisive character, and such as to induce belief that injustice has been done. (Mechanics' Fire Ins. Co. agt. Nichols, 1 Harr., 410.)
5th. A new trial will be granted when material evidence of a distinct species from any that was given at the former trial is newly discovered. (Watts agt. Howard, 7 Met., 478.)
6th. Although the newly discovered evidence is intimately connected with some parts of the testimony at the trial, yet, if it be specifically distinct, and bear upon the issue, a new trial will be granted. (Vardeman agt. Byrne, 7 How. (Miss.,) 365.)
7th. The court will not refuse to grant a new trial on the ground of newly discovered evidence for the reason that such evidence is cumulative merely, if it is sufficient to render clear that which was before a doubtful case. (Barker agt. French, 18 Vt., (3 Washb.,) 460.)
8th. Newly discovered evidence, in order to entitle a party to a new trial, should ordinarily be upon some point not raised at the trial so as not to come fairly within the denomination of merely cumulative evidence, or, if so, it must at least be of such a character as prima facie to raise a strong probability that it will be decisive of the case. (Burr agt. Palmer, 23 Vt., (8 Washb.,) 244.)
9th. Where a new trial was sought, on the ground of newly discovered evidence, though the witness lived near the party seeking the new trial, but he did not know their testimony, and this evidence was to new points, a new trial was granted. (Aiken agt. Bemis, 3 Woodb. and M., 348.)
10th. By cumulative evidence is meant additional evidence of the same general character to the same fact or point which was the subject of proof before, but evidence of distinct and independent facts, of a different character, though it may tend to establish the same ground of claim or defence, or relate to the same issue, is not cumulative within the rule. (Waller agt. Graves, 20 Conn., 305.)
It was also held in that case, in effect, that a new trial would be granted even -though the new evidence was cumulative if the effect of it would be to render clear and positive that which was before equivocal and uncertain. Illustration:
<cThe ground of defence to an action for a libel, brought by A against B, was, that the libelous writing, after it was signed by B, and before publication, was altered by the insertion therein of material words, without the knowledge or approbation of B; and on the trial, C, who drew up the writing, testified that the writing, as published, was not like the paper written by him and signed by B, in that it did not contain the words in question; and it was afterwards discovered that D, without the knowledge or consent of either B or O, inserted those words. On a petition for a new trial, brought by B, it was held that the testimony of D, showing this fact was not exceptionable as cumulative evidence.”
*28011th. Newly discovered evidence to prove an alibi is not cumulative; nor does it come within the objection as tending to impeach the testimony of a witness. It tends to disprove the main fact. (Sargent agt. Denniston, 5 Cow. R., 108, 122, 123.) That case is commented on and directly approved in 10 Wend. R., (296,) and both are directly in point to support Seeley agt. Chittenden, (4 How. P. R., 265, 268; affirmed 10 Barb., 303.)
12th. In Chatfield agt. Lathrop (6 Pick., 417, 418,) the court granted a new trial for the purpose of impeaching the principal witness of the defendant. That case is approved in 10 Wend., 297.
13th. In Guyott agt. Butts, (4 Wend. R., 581, 582, 583,) the line of distinction is clearly drawn, per MarcY, J.:
<e If the evidence newly discovered, as well as that introduced on the trial, had a direct bearing on the issue, it may be cumulative, but we are not to look at the effect to be produced as furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled; the kind and character make the distinction. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition and yet be so dissimilar in kind as to afford no pretence for saying they are cumulative.
14th. In an action for fraudulent misrepresentations of the credit of a person to whom the plaintiff was thus induced to loan money, which he lost in consequence, moved for a new trial on the ground of newly discovered evidence explaining and adding to conversations from which the alleged misrepresentations were inferred, or proving other parts of such conversations, and altering their effect. Held, that the newly discovered evidence was neither cumulative nor impeaching so as to justify the refusal of a new trial. (Simmons agt. Fay, 1 E. D. Smith, 107.)
15th. In Platt agt. Munroe (34 Barb., 291,) the rule is stated, e< in modern practice they are liberally granted in furtherance of justice.”
Allen, J., in conclusion, c< I am of opinion that the proper development of the truth arid the advancement of justice required a new trial,” (p. 298.)
The principles of those cases have been so clearly defined and so long and uniformly applied that they should be regarded by all pure, unprejudiced and intelligent courts, as settled principles of law for the security of the person, the property, and the rights of all citizens. Are they to be oppressively and imperiously scorned and trampled in the dust ?
From the cases mentioned it will be seen that the practice, from the earliest to the latest, (just preceding the decision of this case,) has uniformly been to grant new trials for newly discovered evidence to prove that a demand or defence is c<founded on fiction, supported by perjury;” or for the subornation of witnesses; or for an erroneous credit given to former witnesses whose evidence is falsified by affidavits; or to overthrow a case or defence established by, or predicated upon fraud, artifice, or trickery; or to impeach the principal witnesses; or to prove an alibi of parties or witnesses, &c., as was distinctly proposed in this case; or to render clear that which was before a doubtful case; or where the facts were not fully investigated to attain the rights of parties; or to explain or add to conversations, or proving other parts of such conversations and altering their effect; and in general for ££ the proper development of the truth and the advancement of justice ” between the parties, in such manner and upon such terms as shall prove that the court is worthy of the name Of a court of justice.
Short of this the Court lends itself as a mere instrument of oppression and wrong; it judicially sanctifies the perjury and the subornation of witnesses; lends credit to falsified testimony; upholds and judicially ratifies fraud, artifice and trickery; crushes to earth truth and right; and that security of person and property which should be for all citizens alike, is rendered dependent upon the caprice, the favoritism, the sinister purpose, the hatred or the revenge of the judge who controls the decision of the question.
H. C. ADAMS, Appellant.