
    Gustavus A. Damon & others vs. Edward Carrol & another.
    Suffolk.
    November 18, 1896:
    November 24, 1896.
    Present: Field, C. J., Allen, ICnowlton, Moeton, & Latheop, JJ.
    
      Motion for New Trial on the Ground of newly discovered Evidence.
    
    A motion for a new trial on the ground of newly discovered evidence is rightly overruled, if the party moving therefor failed to use proper diligence to obtain the evidence before the trial and before the opposing party was put to the delay and expense of a hearing in this court upon the exceptions.
    Conte ACT, upon a poor debtor’s recognizance, entered into by Edward C. Mitchell, Jr., as principal, and Edward Carrol, as surety. In the Superior Court, Bond, J. overruled a motion by the defendants for a new trial on the ground of newly discovered evidence; and the defendants alleged exceptions. The nature of the motion appears in the opinion.
    
      H. Dunham & H. Austin, for the defendants, submitted the case on a brief.
    
      R. W. Frost, for the plaintiffs.
   Knowlton, J.

The defendants moved for a new trial on the ground of newly discovered evidence, and filed an affidavit in support of their motion. The new evidence which they sought to introduce was an amendment of the record of proceedings in one of the municipal courts of Boston. The facts on which the amendments were founded were known at least to one of the defendants, and probably to both of them, before the action was brought. The judge found as a fact at the hearing upon the motion, “that no offer was made at the original trial of the action to have the record amended, and no request was preferred to have the case postponed in order that the record might be so amended.” It further appears that the defendants filed their bill of exceptions to rulings at the original trial of the action, reported in 163 Mass. 404, and waited more than fourteen months after the trial, until the exceptions had been overruled by this court before making their motion for a new trial. They failed utterly to use proper diligence to obtain the evidence before the trial, and before the plaintiffs had been put to the delay and expense of a hearing in this court upon the exceptions. The motion was rightly overruled. Gardner v. Gardner, 2 Gray, 434, 444. Exceptions overruled, with double costs.  