
    Gordon v. Harvey.
    [April, 1799.]
    New Trial — Newly-Discovered Evidence — Failure to Apply for Continuance. — If a party believes lie can procure other testimony, be should move for a continuance of the cause; and not wait until there is a verdict against him, and then bring it forward as ground for a new trial, after having taken his chance with the ]ury.
    
      
      See monographic note on “New Trials.”
    
   Gordon brought detinue in the district court, against Harvey, for a slave. Plea, non detinet, and issue. Verdict and judgment for the defendant. The plaintiff filed a bill of exceptions, which stated, that it appeared, .that the slave sued for was purchased, by the plaintiff, of John Heath ; *who, at the time of the trial, was attending his duty", as a member of congress, in Philadelphia; but was eventually interested in the final determination of the suit. That it appeared, that the question of right to the slave greatly depended upon information to be obtained from the said Heath. That the plaintiff moved for a -new trial upon payment of costs, and upon condition, that he should prove to the satisfaction of the court, that the defendant had delivered possession of the slave, to Heath, after the sale; and had received part of the purchase money. But that the court refused the new trial, and gave judgment for the defendant.

The plaintiff appealed to the court of appeals.

The judgment of the district court was affirmed: and by PENDLETON, President, If there was any real ground to believe, that other testimony could have been procured, the plaintiff should have moved the district court for a continuance of the cause; and not have waited until a verdict was rendered against him; and then bring it forward as ground for a new trial, after having taken his chance with the jury.  