
    Deputy v. Tobias.
    A defendant, after a verdict and judgment against him in assumpsit, filed a bill in chancery for a new trial on account of newly-discovered evidence; averring that due diligence had been used, without effect, to procure the evidence previously to the trial: Held, on demurrer, that the bill would lie.-
    ERROR to the Jefferson Circuit Court.
   Holman, J.

Deputy filed his bill in chancery in the Jefferson Circuit Court against Tobias, for the purpose of obtaining a new trial in an action of assumpsit, in which Tobias had obtained a judgment against him on the common law side of said Court. The bill states that Tobias, by a parol contract, undertook to perform for Deputy certain work and labour, as a carpenter, at a specified price, a small part of which was to be paid in hand, and the residue when the work was completed. That Tobias performed the principal part of the work, but not in a workmanlike manner; and refused to perform the remainder. That Deputy paid him that part of the consideration which was to be advanced, and a considerable part of that which was not due until the work was finished, under a belief that To-bias would fulfil his contract. That Tobias, after abandoning his undertaking, commenced an action against Deputy for the work and labour so performed under the special agreement; and declared in two general counts — one an indebitatus assumpsit, the other a quantum meruit; to which Deputy pleaded non-assumpsit and payment, but was unable, after using all the diligence in his power, to find any witness by whom he could prove the special contract; and, consequently, a verdict and judgment were obtained by Tobias for the value of the work so performed. That after the rendition of the judgment, Deputy discovered that by the evidence of two witnesses (who are named together with their places of residence,) he could legally and fully prove the special contract, and also the failure of Tobias to perform that contract. Prayer for a new trial of the issues at law.

To this bill Tobias demurred; and the Court sustained the demurrer, and dismissed the bill.

The demurrer should have been overruled. We think the failure to defend at law is sufficiently accounted for; and, if the contract was as is stated by the hill, the verdict and judgment ought not to stand. The only plausible ground of demurrer is, that Deputy should have obtained, by a bill of discovery, the confession of Tobias to be used in the trial at law. But a bill of discovery is the dernier resort in obtaining testimony; inasmuch as when it is resorted to, it shuts the door against every other method. Therefore it is purely discretionary with every suit- or, whether he will file such a bill or not; and he can never be considered in laches for not seeking a discovery from the opposite party.

Stevens, for the plaintiff

Moore, for the defendant.

Per Curiam.

The judgment is reversed, and the proceedings Subsequent to the demurrer are set aside, with costs., Cause re'jpaanded, with directions to permit the defendant to withdraw Jiis demurrer and answer the bill»  