Ripperdan v. Scott

The Chief Justice

delivered the opinion of the court.

The only question in this case is, whether the court below erred in refusing to grant a new trial.

The amount of the verdict of the jury turned upon the price of whisky delivered in"good barrels at Curd’s warehouse on the Kentucky river, and the finding of the jury seems to.have been predicated upon the price being fifty cents per gallon. The application for a new trial was made upon the defendant’s affidavit, stating,, in substance, that he could prove by a witness then absent in the Missouri territory, that the current market price of whisky in Mercer county, delivered in good barrels on the river, was only two shillings and six pence, and that he knew of no other witness by whom he could prove the same fact. The affidavit also states that he was unable to procure the testi-tnony of the witness, and that he was .misinformed by tbs clerk when the cause was set for trial, whereby he was prevented from applying for a continuance, as he had intended to do.

Pope for appellant, r Nt> new tt-i-granted on accountofab-sent^estimo-anpears, that ifthetestimo-senMiwouiion alter the re. suit. If the tót be'proved by the absent witness, is !⅛ .nr fuselyknown, no new trial ought to be eran led m consequence oftheabsence ofthewitness

It is evident that the defendant disclosed by his affidavit no matter which can justify this court in reversing the judg-men^. 0f the court below. In the first place as it does not. appear on what evidence the jury found their verdict, it is plain that we cannot say that the testimony of the witness, accoun^ tyl10se absence the new trial was asked, wouid have been sufficient, if it had been given to the jury, to have altered their verdict or produced a different result. ^n(j ¡n the next place it is obvious, from the very nature of the thing, either that the fact which the defendant states he could prove by the absent witness was not true, or that he might, with the most ordinary diligence, have discovered other witnesses by whom it could have been established, ror it is impossible to believe that the current market price of whisky should not have been diffusively known.

rpj^ ;1K]p.,nent must therefore be affirmed with costs and . J ° damages.