
    William Hoagland against David Nevius, Jun.
    ON CERTIORARI.
    In order to introduce the testimony of a witness on the appeal, who was not examined before the justice, his name and the points and materiality of his testimony must bo set out in the reasons assigned for a now trial under the act of November 17, 1820. Rev. Laws 797, see. 3.
    This was a certiorari to the Common Pleas of Middlesex, to bring up the proceedings on an appeal from the judgment of a justice. On the trial of the appeal before the Court of Common *.Pleas, the defendant called R. M. Boggs as a witness, and stated that he was a material witness, whom .he had discovered since the trial of the cause before the justice. This witness was objected to by the plaintiff, because in the reasons filed (for setting aside the judgment ■of the justice and granting a new trial,) the 'name of the ■witness, and the points and materiality of his testimony were not set forth. It'was not objected at the trial, that an .affidavit of the fact of newly discovered evidence, since the trial below, had not been made by. the defendant. The defendant’s counsel contended, that an affidavit of newty discovered evidence (made since the 'trial) was all that was .necessary to introduce newly discovered evidence on the tbrial of the appeal. The court rejected the witness, and affirmed the judgment of the justice: thereupon the plain.tiff brought this certiorari, and relied upon the rejection of this witness as the ground of reversal.
   Kirkpatrick, O. J.

In the return of this writ there • comes up a special case, stated by the parties, which Appears •to me to present the only question necessary to be considered.

The appeal was made to the term of June, 1821, and was heard and determined in the term of December of the same year.

The defendant, Hoagland, upon the trial of the appeal, offered, as a witness, one Boggs, who had not been sworn on the trial before the justice, alleging that he was a newly discovered and material witness. To the admission of this witness it was objected, because, in the reasons filed, his •name and the points and materiality of his testimony were not set forth to apprize the opposite party of the matters which he was to prove. And, if I rightly understand the statement of facts, the objection was sustained by the court, and the witness overruled. • And it is for this that the •appeal was made.

Now, in this decision, it appears to me the court was right in substance, though perhaps not altogether upon rsound reasons, or to the whole extent of the decision.

The law, as it then stood, was, that when the court, upon an appeal, awarded a new trial, the same evidence should be admitted upon the trial of the appeal, as had been admitted upon the trial before the justice, but no other; unless such new trial had been awarded upon the discovery of new evidence. Lev. Laws 797.

*Now it does not appear that the discovery of new evidence had been assigned as a reason for a new trial, in this case, upon the appeal, but the contrary; for the very pith of the objection is, that it was not so assigned. Nor does it at all appear, nor indeed could it well appear, not having been assigned as a reason, that the new trial was awarded upon any such discovery ; and yet this seems to be the material fact, nay indeed, it is the only ground upon which the words of the statute lets in this newly discovered evidence.

It is known that there is a subsequent act, passed November 23, 1821, which places this matter upon a different footing, but this can have no operation here.

Upon the whole, therefore, I am of opinion that the

Judgment must be affirmed.  