
    
      LOCCARD vs. BULLITT.
    The court not the party, must judge whether due diligence has been used to procure testimony.
    Appeal the court of the sixth district.
   Porter, J.

delivered opinion of the court The first question to be decided in this case, is on an application for a new trial. It was bottomed on an affidavit of the plaintiff, which stated, "that he had discovered new and important evidence in his behalf, which he could not, by using reasonable diligence, have discovered before; and that he believed he could prove by it, certain facts material to his case."

West'n District,

Sept. 1824.

Rost for the plaintiff, Bullard & Holkam for the defendant.

It is the opinion of the court, that that of the first instance did not err in considering this affidavit as insufficient. It is too loose and general; and the party making it, if he swore falsely could not have been convicted of perjury. It should have stated the names of the witnesses, if the testimony expected was parol; or if written, its nature, and where it had been found; for the court, not the party, must judge whether reasonable diligence was used.

We have examined the evidence, and see nothing to authorise us to come to a different conclusion from that of the district court.

It is therefore ordered, adjudged and decreed, that the judgment be affirmed with costs.  