
    Halsey against J. and S. Watson.
    Court will not grant a new trial, where the evidence has been on both sides ■ In applications for new trials, on account of a subsequent discovery of material testimony, what that testimony is, must be stated, that the court may judge of its materiality.
    This was a motion for a new trial, on an affidavit of a discovery of new and material evidence. The points and substance are so fully stated in the decision of the court f-hat it is unnecessary to do more than give the judgment.
   Per Curiam.

This is a motion for a new trial, and comes before us on the ground of a discovery of material testimony since the trial of the cause. To see this, and judge whether it be material or not, it will be necessary to state the former testimony and nature of the suit.

It is assumpsit by Halsey, the plaintiff, against James and Samuel Watson, the defendants, as owners of the ship Chesapeake, founded on a neglect in not taking on board some tobacco, according to contract.

The witness, Heyer, who appears to have acted as agent for the plaintiff, states what the contract was, and the time * at which the tobacco was to be on board. This agreement appears^ to have been made on a Friday. The witness inquired of the defendant James Watson, when the tobacco should be sent down to the vessel. The answer was, “ Send it down as quick as possiblein consequence of which, it was sent the very next day.

From three witnesses it is shown, that the principal part of the tobacco was on the dock by eleven o’clock in the forenoon, and that the whole was ready to be put on board by three. These facts, then are established by three witnesses. The captain swears that, after 4 or 6 hogsheads had been brought, he requested the carmen not to bring any more, as there were appearances of a storm. This the principal carman has, in effect, denied; for he says, he was desired by those on board the ship, or the captain, to bear a hand; and that he got all the tobacco down by dinner [*2o] time. Here the ^testimony is contradictory. We are to judge, then, if the material evidence, as it is termed, that has been discovered since the trial, be really testimony or materiality. There is one person who swears as to the directions given by the captain. The court are of opinion that this is not material, so as to warrant granting a new trial. This in two points of view: the testimony goes only to impeach the credit of what has been sworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view it is not material: nor can it be so in another, unless the defendants can go further. The direction not to bring down the tobacco, was to a carman. This is not sufficient: as Watson directed it to be sent as soon as possible. It ought to have been to the owner of the tobacco: or to have shown that the request was brought home to the knowledge of the plaintiff; that it was made to a carman, is not sufficient. The defendants’ affidavit states two other witnesses, who are material; but does not say to what facts they would testify; we cannot, therefore, judge whether they are material or not. Blaclcmer, it is stated, will testify that the tobacco was not marked till Monday. This will only go to impeach the credit of the testimony; for three witnesses swear to the fact, of the marking being before one o’clock on Saturday. The captain himself does not pretend that the reason for not taking it on board was the hogsheads’ not being marked, but only. that he had not time. He does not pretend it was not ready to be taken on board.

New trial refused. 
      
       The rule to be extracted from the cases on the subject of new trials, where evidence has been given on both sides, seems to be, that if the verdict be manifestly against the weight of ■ evidence, and will work injustice, a new trial will be granted. Berks v. Mason, Say. 264. Norris v. Freeman, 3 Wils. 39. Jackson v. Sternbergh, post, 162. If it be merely doubtful and contradictory it will not. De Fonclear v. Shottenkirk, 3 Johns Rep. 170. When the materiality of evidence is relied on, in addition to the requisites demanded by the decision in the text, the names of the witnesses must be specified, and what is expected to be proved by them; Richardson v. Backus, 1 Johns. Rep. 59, it is not enough to state what the party applying has been told they will say. Shumway v. Fowler, 4 Johns. Rep. 425. If the testimony go merely to impeach the credit of a former witness, a new trial will be denied. Bunn v. Hoyt, 3 Johns. Rep. 255." Shumway v. Fowler, ubi sup. especially so, if the witness whose credit is assailed be dead. Duryee v. Dennison, 5 Johns. Rep. 248. But if the credit given to the former witnesses arose from, ciroumstcmces which are falsified by affidavit, a new trial may be allowed Lister v. Mundell, 1 Bos. & Pull. 427. The reason of this distinction appears to be, that mere affirmations and denials by word of mouth may be fabricated; circumstances and the happening of facts cannot. See post, Steinback v. Columbian Insurance Company, 2 Caines, 133, n. (a).
      
      See also Jackson v. Sternbergh, 1 Cai. R. 162. Douglass v. Tousey, 2 Wend. 352. Keeler v. Firemen's Ins. Co., 3 Hill, 250. Eaton v. Benton, 2 Hill, 576. Smith v. Hicks, 5 Wend. 48. Astor v. Union Ins. Co., 1 Cow. 202. Jackson v. Loomis, 12 Wend. 21. Hollingsworth v. Napier, 3 Cai. R. 182. Carley v. Wilkins, 6 Barb. S. C. Rep. 557, 565. Esterly v. Co.*, 1 Id. 235, Fleming v. Hollenback, 7 Barb. S. Court Rep. 271.
     