1. The issue tried in this case was a simple one. Was the principal defendant living at the date of the judgment on the scire facias ? The parties had from 1868 to the trial in 1873, to get up their evidence, much of it on both sides was by interrogatories, so that each party had notice of the witnesses of the other and what they would probably prove. The evidence was painfully conflicting, and.the new evidence is precisely in the line of what each party brought forward on the trial. It must be admitted that the rule as to when evidence is cumulative only, is not very definitely settled, and for myself, I am free to say that the decisions do not seem to be founded on any proper principles. The true rule ought to be, I do not say it is, that a new trial ought to be granted only when the new evidence would most probably produce a different result, and that if it would probably do so, there ought to be a new trial whether the evidence is cumulative only or not. In this case the new evidence is not only upon a point principally controverted at the trial, but it is upon a point on which both the parties produced much evidence, and evidence of precisely the same character as the newly discovered evidence.
2. The verdict seems to have turned almost entirely on the credibility of the witness Fields. He seems to have been known to both parties and to the community where the trial was had, and it was peculiarly with the jury to pass upon his credibility. Questions of identity, as we all know, are very knotty ones, and depend entirely on the means of observation of the witnesses and their credibility. Suppose the jury, having the highest respect for the integrity, good sense, and knowledge of this witness, Fields, and the fact that no effort was made in any way to affect his credibility, indicates that the jury did have this confidence. Suppose, I say, this confidence to exist, and the jury to have concluded he was mistakén as to the year he saw the defendant, that it was in 1867 and notin 1866; this would make all the witnesses tell the truth, for it is significant that after 1867 he does in fact dis*306appear and remains unheard of till the trial. As to the motion to amend, we think that shows want of diligence, and fails also in this, that it does not appear affirmatively what the witnesses would swear. Altogether, we do not feel authorized to say that the jury and the judge have so erred as that the principles of justice and rules of law require this court to interfere.
Judgment affirmed.