This is a bill for a new trial, after a verdict in the Suffolk Common Pleas, upon a sealed note, amounting, in principal and interest, to 103 dollars 61 cents. The ground of the application is the discovery, since the verdict, of testimony to prove the payment of the note, and the want of power in that Court to grant a new trial, otherwise than for irregularity, as none of the Judges are of the degree of counsellor in the Supreme Court.
Anciently, Courts of equity exercised a familiar juris*482diction over trials at law, and compelled the successfnl party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. This relief was not granted, unless the application was founded upon some clear case of fraud or injustice, or upon newly discovered evidence, which could not possibly have been made use of upon the first trial. But this practice has long since gone out of use, and such a jurisdiction is rarely exercised in modern times, because Courts of law are now in the competent and liberal exercise of the power of granting new trials. (1 Vern. 177. note 1. Richards, B., in 3 Price, 247. 1 Johns. Ch. Rep. 97. 323.) The present case, however, seems to form an exception to the modern rule, and to require of this Court the exercise of that ancient jurisdiction, because, here is a case in which the Court of law has ño power to award a new trial upon the merits. If the particular circumstances stated in the pleadings and proofs, rendered the exercise of the power proper by a Court of law possessing jurisdiction for that purpose, I should feel myself called upon to grant relief to the plaintiff, unless it should appear that the sum in controversy was too small to bear the expense of the remedy.
But oil examining the testimony taken in chief, I think it is pretty evident that the plaintiff did not use the requisite diligence, or the means in his power, to establish, on the trial at law, the payment which he now sets up as his defence; and for that reason, he is not entitled to the interposition of this Court, on the ground of the newly discovered testimony. It is the settled doctrine and practice of this Court, as well as of Courts of law, that a party is not entitled to relief after verdict, upon testimony which, with ordinary care and diligence, he might have procured and used upon the trial at law. It would be establishing a grievous precedent, and one of great public inconvenience, to interfere in any other case than one of indispensable necessity, and wholly free from any kind of negligence ; *483especially, when the matter in controversy was of small amount, and not well able to bear the expense of a litigation in this Court. ,
The plaintiff did not plead payment, nor entitle himself to prove it, against the demand upon the specialty. It could not have been given in evidence upon the general issue, without a special notice subjoined to the plea. Here was a great and fatal want of diligence on the part of the plaintiff, in not putting himself in a capacity to give payment in evidence upon the trial; and it appears, by the testimony of Jedediah Hart, a material witness for him, that he informed the plaintiff, before the trial, that he could be of some service to him, as a witness at the trial, but the plaintiff made no reply, and told him, afterwards, " that as there was no third person present,-when he had given the money to Jayne, to take up the note, he did not suppose that deponent could know any thing material on the subject, and that therefore he had not called him to be a witness on the trial.” ' It is now very clear, that had the plaintiff pleaded payment, and availed himself of the information which Hart had it in his power to give, and produced Hart as a witness, he would have supported his plea of payment. So, again, it appears that John Jayne, another material witness for the plaintiff, was, at the time, known to him to be such, for the witness says he was present when the defendant, M, J., confessed to the plaintiff that the note was paid and destroyed. The plaintiff should have recollected that this witness was present. Due inquiry would probably have brought that fact to his memory, but it does not appear that he made any inquiry. Another material witness for the plaintiff is Charles Jl. Floyd, his attorney in the suit below, who, of course, knew, before he was employed to defend the suit, and put in a plea, the existence of the acts and confessions of the defendant, M. J., in respect to the note, which are now mentioned by him as evidence.of payment. This appear* *484to me, upon the whole, to be a very strong case of negligence, before the trial; and there is no account of any effort or inquiry whatsoever, made by the plaintiff pending the suit at law, to enable him to set up and support a plea of payment.
I cannot, then, interfere in this case, according to my view of the principles of the Court, or my sense of sound discretion. The bill must, accordingly, be dismissed, without costs, as against the defendant, M. J., and with costs as against the other defendants, so far only as relates to their appearance and answers; and they are not to be allowed for any of the subsequent costs which were exclusively created between the plaintiff and M. J.
Decree accordingly.