The opinion of the court was delivered by
Royce, J.The defence to the action, in which a new trial is prayed for,was that the act of the town clerk, in recording the deeds to the petitionee, by copying them upon the blank leaf of a record book, which had been laid aside for some years, and omitting to alphabet them, was done with the knowledge and consent of the petitionee, and with a view to conceal the knowledge of the mortgages from other creditors of Cyrus Adams, the mortgagor.
Much testimony appears to have been given, at the trial of the action, in support of this defence, and in answer to it; but the trial resulted in a verdict and judgment, against the town.
The new discovered testimony is that of Levi Mahurin, who deposes that, in the' summer of 1834, the petitionee admitted to him that he did consent to have the mortgages recorded in such a manner as to conceal the knowledge of them from third persons.
The question is, whether, for this additional evidence, the court, in the exercise of a proper discretion, ought to open the controversy by granting a new trial.
Upon questions of this sort, the applicant is required to show, first, that injustice has been done, and, secondly, that the evidence newly discovered would, in all probability, lead to a verdict and judgment the other way.
The newly discovered evidence certainly tends to show that the recovery was grossly unjust. For if the course pur*287sued by the town clerk was in fact authorized and assented to by the petitionee, there is no honest pretence for saying that he ought to be recompensed for any loss, resulting from that course of proceeding. Our difficulty is upon the other point, and not upon the ground that the new evidence is cumulative, but lest it should prove altogether inconclusive.
It is not our duty to renew a doubtful controversy. We are therefore to estimate the probable effect of this evidence, in view of those obvious considerations which would not fail to be urged in derogation of its credit and value.
It is testimony to a private confession, of remote date, and, as such, to be received with considerable allowance, especially, as the length of time may have caused the witness toforget the precise terms of the admission, or the connection in which if may have stood with other declarations going to explain or qualify it.
The confession, if really made, as represented by the witness, was of the very fact, and the whole fact,which was required to destroy the petitionee’s defence to the acton in favorof Sawyer and Rogers then pending against him. And although the excuse of the witness, for not disclosing the communication, may have reasonably applied to that suit, it seems quite insufficient to account for his silence after his own town was sought to be charged with a heavy claim, known to this witness to be groundless and fraudulent. The fact of such a confession having been deliberately made, is therefore rendered improbable. The confession, if made, was to an inhabitant of Middletown, who was interested to take advantage of it. It is not represented to have been made in any special confidence, express or implied, nor does it appear to have been induced by any motive of interest at the time.
We therefore think the additon of this testimony might not materially affect the result of another trial.
Petition dismissed.