Inhabitants of Falmouth v. Inhabitants of Windham , 63 Me. 44 ( 1873 )

Rescript.

The testimony is conflicting. The result depends upon the credibility of the witnesses, and there is no decided balance of testimony either way. In such cases, a motion for a new trial because the verdict is against the weight of testimony will be overruled.

As to the motion on the ground of newly discovered testimony, it is quite apparent that this testimony, so far as it is material, might have been discovered before the trial by the use of ordinary diligence. For that reason this motion must be overruled.

The exceptions to the riding excluding the question put to the plaintiffs’ witness, Yarney, cannot be sustained. It is true that the ground on which it was made is not in accordance with the rule heretofore adopted and practiced upon in this State. But the case does not show that the defendants were prejudiced by the ruling, so far as it is erroneous, but the reverse. The witness afterward testified in full for the defendants, and it does not appear that they had any occasion to avail themselves in the examination, or otherwise, of any of the privileges usually accorded to a party in regard to an opponent’s witness.

Motions and exceptions overruled.