After argument, the opinion of the Court was delivered by
Paddock, J.The exceptions state that in October, 1828,. Beach & Cloys took from Bulloch's flock six sheep, two of which they claimed as having purchased them of one Church, a year or more before that time. The plaintiff offered to show the disposition of all the sheep which, the defendanispurchased of Church ; hence, none of the sheep in question could be of that purchase and they offered a witness who could testify, that in the fall of 1827, one of the defendants said, they intended to kill this sheep this season, or in the fall. And as-the defendant objected to the admission of this testimony, it was excluded by the Court, and, the plaintiff thinks, improperly, because he says that it tended to prove the defendants did in fact kill one of the sheep which they had of Church.
It is not uncommon for a party to state a number of circumstances which he can prove, and which connect themselves so as to have a tendency to establish a material point in issue, when no one,- taken alone, would be considered relevant to the case. And such is the character of the testimony here rejected, for it does not appear that there had been any previous testimony with which it could be connected, nor does it appear that the plaintiff informed the court that he had any other evidence to bring forward with which the rejected testimony would be connected. The court were left, then, to consider, whether the defendants’ saying they: intended killing the sheep, would have any tendency to establish the fact that they did kill it; aud they came to the conclusion, that it did- not. The fact once being established, that the sheep *75’was Filled the fail before, the rejected testimony would'have been admissible to prove'the defendants killed it. Showing the defendants’ previous determination to kill the animal would afford a strong presumption that they earned their design iu¿o execution, the beep missing from their flock. But it migitthave been true that they inteiided killing it, and so expressed themselves at she time the witness would have testified they did, and yet the same sheep have been one of the six taken from the plaintiff’s flock.
We are aware that tb . case slates “ there wasmacii evidence •introduced on both side tending to prove that the plaintiff owned the sheep, and, on the entrary, that they were the defendants’./’ But we are left to believe all this testimony went to the id. niity -of the six sheep taken from the plaintiff’s flock, and the ownership of them, and not to the disposition of those which they bought of Church.
It appears that after the testimony of the witness was rejected the plaintiff introduced another witness who said that the defendants, or one of them, confessed he had killed one of the sheep purchased of Church. After producing this evidence, if the plaintiff had renewed his request to show the previous determination to kill it,the court would unquestionably have admitted it; and it was the duty of the plaintiff so to have done, instead of reserving the question for the consideration of'this Court. Taking this 'piece of evidence into consideration, it is to be regretted that the testimony of the witness was not admitted. But it appeals the case was very doubtful upon the evidence, and we are inclined to think that, had the testimony been admitted which was shut out, it would have varied the case but little, if any.; and as we think the plaintiff had an opportunity to have brought it in after paving the way by the confessions of the defendants, but neglected todo so, the application to arrest the judgement must be denied^ and the judgement of the county court affirmed. 1 Stark. 438.
In connection with these exceptions, was submitted a petition dor a new trial, alleging that, since -the trial in the county court, new and material evidence has been discovered, to wit, the testimony of Gillet, of whom the plaintiff says he purchased the sheep in question\ also of Fitts, who heard Cloys say he had killed ■the fatted sheep.
There are two objections to granting a new trial upon this testimony, which is difficult to overcome,; first, that the character «ef *76the testimony, is entirely cumulative; and the principle is Well es* tablished that a new trial is not to be granted upon the discovery of testimony whicdi is purely cumulative. Smith vs. Brush, 8 Johns. 84.—Peake vs. Thompson, 15 Johns. 210. I.t-KSBSt case where f ne court have a strong and fixed belief that injustice has been d< me by the verdict, and a conviction that the new evidence would have turned the verdict the other way, to induce them to op en the case for new and fresh litigation. But it will be recollected that in the bill of exceptions it is stated, that one witness testified to the same fact. If the jury believed that witness (of whi<ch we have no means of knowing) then Fitts' testimony would be useless; for one witness, if believed, is generally sufficient fto establish a fact. Secondly, we cannot conceive what modi? of reasoning will bring one to the conclusion that Gillet is a new ¿discovered witness,or that which he will testify to, new discovered ;testimony. The plaintiñ does not pretend he was ignorant of whom he purchased the sheep, but excuses himself for not producing Gillet on the trial, his being the opposite side of the lake. As the plaintiff was not surprised by the absence of Gillet, he might have procured him to examine the sheep, and give his deposition, at any time anterior to the court. If that could not have been done, it was his duty to have moved for a continuance to bring the witness in. Martin vs. Martin, 15 Johns. 293.—Drayton vs. Thompson, 1 Bray. 263.—De Lima vs. Glassell, 4 Hen. & Munf. 369. But to take a trial on a part of the testimony, and in the event of losing, for the court to grant a new trial to lei in the residue, would be a solecism in the annals of jurisprudence. Marriot vs. Hampton, 7 D. & E. 269.
Bates & Chipman, for plaintiff. Phelps, for defendants.Were it nothing else, the smallness of the amount in controversy is sufficient to forbid the opening of the case. With, all the preparation a party can make, and two verdicts against him, he ought to pause and examine,whether his cause be a just one. It is what a prudent man would ever do,and not let his passions urge him on to the ruin of himself or opponent. The prayer of the petition must be denied.