This is, in effect, a petition to this court, in the exercise of its equity jurisdiction, for a new trial in a case heard and determined by the county commissioners for the county of Plymouth, upon a petition properly before them, upon the ground of newly discovered evidence. [The judge here recited the principal facts averred in the bill.]
To this application the defendants, in the first place, object that the alleged newly discovered evidénce is merely cumulative, and therefore affords no ground for disturbing the award of the commissioners. And the allegations in the bill do in fact show that it does not relate to any point or ground of defence which was not taken and attempted to be maintained by the plaintiffs at the hearing, nor to any to which evidence, closely resembling and very similar in its character to that subsequently discovered, of which they certainly then had knowledge, was not applicable, which might have been, if it was not actually, *443produced by them upon the trial. The proposition which they now assert, and which they propose to prove by showing what actually occurred between March 1858, when the water had risen to the height of the natural outlet, and the time of the filing of their bill, is, that there was no loss or diminution of the quantity of water running through the outlet and down the brook below, in consequence of the acts of the town in maintaining and using their aqueduct in the manner and for the purpose for which it was constructed; and consequently that no injury, or at most only a merely nominal injury, has occurred thereby to the defendants’ mills. That is precisely the ground of defence which they assumed and endeavored to establish at the trial before the county commissioners. And by the allegations in the bill they now show, in substance, that after their aqueduct was completed and in use, and was arranged to be permanently supplied with water brought to it from the Great South Pond through their said canal, the water, for a period of eleven months, from November 1855 to October 1856, when the defendants unlawfully and tortiously dug down and deepened the outlet and the brook below it, continued to flow from the pond without producing any material or perceptible diminution of the natural stream which had formerly flowed from it. Thus it appears that the alleged newly discovered evidence tends only, so far as it relates to the question in controversy between the parties, to prove exactly the same fact which the evidence concerning the use, appropriation and flow of the water of the pond from November 1855 to October 1856 tended in the like manner to establish, namely, that the quantity of water withdrawn from the pond and diverted from its natural course by the plaintiffs through their aqueduct was so inconsiderable that it caused no material or perceptible diminution of the stream or brook below the outlet, and so could not have been the occasion of any appreciable loss of power to the defendants in the working and operation of their mills. It was therefore merely cumulative, and for that reason, upon the settled and familiar rule of law concerning such evidence, it affords no sufficient or legal cause for setting aside a verdict or award, and granting a new trial. *444Gardner v. Mitchell, 6 Pick. 114. Yarmouth v. Dennis, Ib. 116, n. Sawyer v. Merrill, 10 Pick. 16.
But the defendants further insist that the great delay of the plaintiffs in seeking to avail themselves of the alleged newly discovered evidence, for the purpose of obtaining a new trial, affords a controlling reason why the relief prayed for in the bill should not be granted. This objection is predicated upon the facts admitted by the parties, and it appears to us that it is decisive of the question before us, and that it must prevail. Laches is always discountenanced in equity, and in law it often constitutes a bar to claims which might otherwise be established. A person may therefore by his own loches deprive himself of a benefit or right to which, by the exercise of the requisite and proper diligence, he might have attained. Story on Eq. §§ 64 a, 771, 1520. Lansing v. Eddy, 1 Johns. Ch. 49. Dodge v. Strong, Ib. 228. Barker v. Elkins, Ib. 465. Titcomb v. Potter, 2 Fairf. 218. Thus, for instance, a party who, after a verdict or an award against him, has come to the knowledge of new and material evidence concerning the matters in issue, which he had no means of discovering at an earlier day, will in general be entitled to a new trial, upon application therefor to a tribunal competent to grant it; but he may lose this advantage by immoderate and unreasonable delay. For although the exact period within which his petition for such relief shall be preferred has not been limited or defined by any positive rule of law, it must certainly be done within a reasonable time. This is essential to the protection of the rights of the adverse party; for otherwise he might be subjected to serious inconvenience or irreparable loss, by having his attention diverted from the whole subject, in the confident expectation, justly entertained, that no attempt would ever be made to revive the controversy; or still more directly by being deprived by the mere lapse of time of evidence in his behalf which he either cannot, or has no reason to believe that he has any occasion to endeavor to, perpetuate and preserve. In cases somewhat similar to this the statute has prescribed a certain and positive rule of limitation. When judgment has been rendered upon the default of a defendant *445upon whom no service has been made by reason of his being absent from the state, or of his residence being unknown, he may as of right sue out a writ of review at any time within one year after the judgment wTas rendered. And when a judgment in any civil action is rendered against a party in his absence and without his knowledge, he may be authorized by this court to sue out a writ of review upon petition therefor, if his petition shall be presented at any time within one year after the judgment, or within one year after it shall have come to his knowledge. Gen. Sts. c. 146, §§ 20, 21. Rev. Sts. c. 92, § 4; c. 99, § 17. In analogy to these provisions, and in view of the manifest reasonableness of such a limitation, it must be held that a new trial cannot, except for good cause shown, such for example as that it was impossible to act with greater promptitude, be granted on account of the discovery after trial and judgment of new and material evidence, unless the petition for such new trial is duly presented within one year after such discovery has been made. This gives to the petitioner ample time to make all requisite preparation for action on his part, and a fair regard to the rights of the adverse party requires that it should not be extended to any greater length.
In recurring again to the facts alleged in the bill, it appears that as early as the 1st of March 1858 the water in the Great South Pond had risen to such height that it then began to overflow the barrier placed at the outlet, and that ever afterwards, until the filing of the bill on the 25th of October 1862, it continued to overflow the barrier in greater quantity and with more steadiness than it had ever been known to flow there before the water works of the plaintiffs were constructed. Of all this the plaintiffs had knowledge; and therefore for four years at least prior to the filing of their bill they were fully acquainted with the facts which they set forth and rely upon as newly discovered evidence. This great delay has not at all been accounted for, or shown to have resulted from necessity, or to have been caused by any impediment which they could not have controlled. They have afforded no explanation concerning it. Nor would it, or ought it, in any degree to avail them to show that, *446during a part of this intervening period, they were seeking for a remedy in the prosecution of other legal proceedings instituted for that purpose, if, after the close of those proceedings, and the rendition of final judgment therein, more than a year elapsed before the bill in the present case was commenced and filed in court. We are therefore satisfied that, if there were no other objection, this delay on the part of the plaintiffs was such lachea as to preclude them from obtaining for the cause alleged the new trial for which they petition.
Demurrer sustained and bill dismissed.