Waters v. Langdon & Wright , 16 Vt. 570 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

The exceptions present no questions of law, but such as have long since been settled. Upon the question of jurisdiction the case of Spafford v. Richardson, 13 Vt. 224, is decisive. It cannot be seriously contended, that the question of jurisdiction is to depend upon the fact, whether the evidence proved a conversion of one thousand pounds of tallow, worth twelve and a half cents a pound, or of only nine hundred and twenty four pounds* of an inferior quality, and worth a less price.

We cannot see what possible objection there could be to the evidence offered by the plaintiff, to show the value of tallow, when this was converted.

The petition for a new trial is of a novel character, and, if granted, would establish a principal not hitherto recognized. Petitions for new trials, on account of new discovered evidence, have not been much favored. Our law gives to the party, in all cases, two trials, if he wish to have them. In the present case it appears that the principal point, litigated at the trial, was, whether one Smith, who sold the tallow to the defendants, was authorized so to do by the plaintiff. Smith was convicted of stealing the same tallow, and sentenced therefor to the state’s prison. It is his testimony, which the defendants say, in their petition, is new discovered, and of which they wish to avail themselves on another trial.

The authority of Smith was the very point litigated at the trial, and there is now every motive to induce him to swear to his authority to sell, and, by the result of a verdict in favor of the defendants, induce the belief that he was unjustly convicted; and he must feel hostile to the plaintiff, on whose testimony he was convicted. The precedent would be bad; and it would be unsafe to grant a new trial on such testimony. Pardons would be procured for the purpose of making convicts witnesses, and procuring new trials on their testimony.

Smith may be regaining and establishing a new character, and it is hoped he will be successful; and it is favorable, that he has so far succeeded, as to procure so many respectable testimonials in his favor. But it is doubtful whether his testimony, taken in connection with his conduct related by other witnesses, as appears from the minutes of the judge who presided at the trial, would produce a different result, if another trial should be had.

The case is not brought within any rule, which the court have heretofore recognized in granting new trials. The testimony may be said rather to be new created, than new discovered.

The judgment of the county court is affirmed, and the petition is dismissed.