On this petition for a new trial in a case wherein Kendall was plaintiff and Bodge & Waterman defendants,. *35these grounds are urged as a reason for granting the prayer of petition. First, Surprise; Second, That one of the witnesses called on by the plaintiff was incompetent from interest; and Third, New discovered evidence,
It appears that on the trial the issue joined between the parties was, whether Dodge had left the liberties of the jail yard between the 30th November, 1819, and 29th May, 1820, he having obtained an act of suspension at the session of the legislature in 1819. It appears that the fact of the escape was sworn to directly by one Peck, whose general character was impeached ; that Mr. Upham was then called, who swore to -a transaction between him and Dodge, and a conversation also in relation to that transaction, which tended to show an escape by Dodge, at a different time from that testified to by Peck, but within the issue. The surprise complained of was in the testimony of Mr. Upham, He was the witness who it is said was incompetent, he having been recognised for the prosecution of the suit in favor of Kendall, against these petitioners ; and the new discovered testimony is to shew that he was mistaken. There are many reasons why the prayer of this petition cannot be granted. The parties must have come prepared to meet the question presented by the issue, and cannot complain of surprise because a witness was introduced directly to prove that which was directly put in issue. It does not appear that any request was made to the court to postpone the trial after Mr. Upham had testified. The petitioners took their chance for a verdict upon the .testimony as offered.
2. The interest of Mr. Upham appeared from the writ, which was then present, or from the records ; and the objection should have been taken at the trial when the witness might have been rendered competent by substituting other bail, or would have been rejected.
3. As to new discovered evidence, the general rules in relation to granting new trials for this cause,have been repeatedly settled, and among others, that it must make a clear case, and not be merely cumulative, leaving the -question still doubtful, and only giving the party a chance before another jury. Mr. Upham’s testimony was to a conversation between him and Dodge, and the new discovered evidence tends to show that -the impression which Mr. Upham had from that conversation, was incorrect.
But if Upham’s testimony was entirely kid aside, we cannot say from the case, as it now appears, that the verdict-would have been the other way. The testimony of Peck was direct and positive j *36though he was impeached as to his general character, he . , , • i- t . might still gam beliei. He is not even contradicted by any tes-hmcmy or affidavits here produced. His testimony, in connexion vv'^1 ^act> that the act of suspension was passed in November, 1819, when there was no doubt of the validity of such acts, and the improbability of Dodge’s remaining in the limits when he supposed he was under no legal obligation so to do, would be very likely to prove the issue on another trial. Furtherwe must be satisfied that injustice has been done between the parties before we should grant a new trial. It is not pretended but that the condition of the jail bond has been broken. The only question is whether it has been done within the time specified in the plea. We should not be disposed to grant a new trial merely to litigate that point if we had reason to believe that by an alteration of the pleadings the plaintiff would be entitled to recover. Furthermore; in neither of the'affidavits of Dodge which have been filed does he either deny the fact of his having broken the bonds, or of his having broken them within the time stated in the pleadings. If he had remained within the limits for so long a time, he must have been certain of that fact, or, at least, he could have sworn to his belief of it. On the contrary, he only-swears that he does not know how long after the act of suspension was passed before he left the limits; nor can he certainly say whether he left them before the first day of June. It is further uncertain, from the affidavits, by whom Mr. Upham was called as a witness, whether by plaintiff or defendant. There is no sufficient reason for granting the new trial in this case.
The petition must, therefore, be dismissed with cost.