delivered the opinion of the Court. The defendant makes oath, that since the trial, and not before, he has discovered that Stephen Tappen was a material witness for him on the trial of this cause.
The question submitted to the jury was, whether a certain note of about 200 dollars, in favour of the defendant, against Rayner & Pinney, and which the defendant had sold to the plaintiff, was, or was not, included in the endorsement of 293 dollars and 50 cents, on the note, upon which the pre sent suit was commenced. The jury believing it was included, gave a verdict for the plaintiff for the whole amount claimed, deducting the endorsement on the note only. The affidavit of Stephen Tappen, the witness, states, that the note of 200 dollars against Rayner & Pinney, was not the consideration of, nor was it included in, the endorsement of 293 dollars and 50 cents. The testimony, then, if true, is material; and the further inquiry is, whether laches is not imputable to the defendant ? If he knew that Tappen was a material witness, and that he could'not procure his attendance in time, he ought to have applied to postpone the trial. (2 Caines, 155. 3 Caines, 182. 186. 307.)
It appears, from the affidavit of William H. Sabin, that, the endorsement is in the hand writing of Tappen; that for five or six years last past, he has been in the service of the defendant, and resided near him at the time of trial; that Harvey Baldwin, a son of the defendant, who served the notice of motion for a new trial, and who stated, that he was agent for his father, and took upon him the defence of the suit, admitted that he had seen the note, and knew that the *490endorsement was in the hand writing of Tappen. These facts seem to establish great inattention in not procuring the testimony of the witness, or in not putting off the trial of the cause; they excite strong suspicion, that the defence is colourable only. The plaintifl has proved, by a number of witnesses, that Tappen is wholly unworthy of credit under oath. This it was competent for .him to do. In Pomeroy v. The Columbian Ins. Co. (2 Caines, 260.) the plaintiff was permitted to read affidavits to question the credibility of the witness newly discovered.
On the whole, I am of opinion, that there has not been proper diligence to obtain the testimony of Tappen, and there are strong grounds to believe his character is infamous.
The motion for a new trial must, therefore, be denied.
Motion denied.