
    JAMES FLANNAGAN v. JULIUS NEWBERG.
    Attachment — Dissolution.—A writ of attachment improperly issued should he dissolved on motion.
    Cumulative Evidence. — When newly discovered evidence relates to a substantial point or jiarticular fact which was inquired into on the trial, it is cumulative.
    New Trial — Newly Discovered Evidence — Practice.—If the newly discovered evidence brings to light some new fact bearing upon the main question at issue, and would be likely to change the result, a new trial should be granted. -
    Appeal from the first district, Nez Perce county.
    
      Ouriis & George, for the appellant.
    
      A. Heed, for the respondent.
   Kelly, J.,

delivered the opinion of the court,

McBpjde, O. J., and Cummins, J., concurring.

This action was brought by plaintiff as assignee of a promissory note for six hundred and twenty dollars, made by the appellant March 27, 1868, and payable to one E. Malony or order, and transferred by the payee to this plaintiff (appellee) some time after its maturity. The note and one hundred and fifty dollars cash were given for one half of a pack train, and was to become due when the train returned from Florence to Lewiston. The note was left in the bands of James O’Neil for safe keeping until tbe return of tbe train, and remained in O’Neil’s bands until about tbe first of November of tbe same year. Tbe note was assigned to plaintiff October 10, 1863. Tbe plaintiff, Flan-nagan, at tbe time of commencing tbe suit, sued out a writ of attachment and levied upon tbe property of defendant. Tbe ground for issuing tbe attachment, as set forth in tbe affidavit, is that tbe defendant was about to sell, convey, or otherwise dispose of bis property with intent to binder, delay, or defraud bis creditors.

Tbe answer of tbe defendant admits tbe making of tbe note, but sets forth that tbe note bad been paid while in tbe bands of O’Neil, and defendant was fully discharged from said indebtedness and tbe plaintiff bad full notice.

Tbe defendant on tbe nineteenth of December moves to dissolve tbe attachment on tbe ground that tbe facts upon which tbe attachment was issued did not exist, and tbe affidavit upon which tbe writ issued was insufficient and shows no cause for an attachment. This motion was beard upon affidavits submitted by each party, but was denied by tbe court, to which ruling tbe defendant’s counsel duly excepted. This cause was tried by a jury, and a verdict found for tbe plaintiff for tbe amount prayed for in tbe complaint. Tbe defendant moved for a new trial on tbe ground that tbe verdict was contrary to evidence, and also on tbe ground of newly discovered evidence. The evidence to support tbe attachment should show that the defendant bad or Vas about to dispose of bis property to binder, delay, or defraud bis creditors.

Tbe affidavit of tbe plaintiff Flanhagan shows that tbe defendant Newberg denied tbe indebtedness upon which tbe suit was brought, and had denied such indebtedness from tbe time be made tbe second trade with Malony, which tbe plaintiff well knew; that because tbe defendant denied such indebtedness and refused to present an order for said note, and declared bis intention to go to Europe, tbe plaintiff was induced to believe tbe defendant about to dispose of bis property to hinder, delay, or defraud bis creditors; that defendant told plaintiff be bad gold dust on deposit in the town of Lewiston subject to attachment; tbat defendant bad sold bis pack train to one L. P. Brown, and tbat be bad no property aside from money or debts tbat be (plaintiff) knew of.

Tbe testimony of tbe other witnesses on tbe part of tbe plaintiff corroborates tbe statement that tbe defendant bad declared bis intentions to close up bis business and make an extensive tour in Europe. Tbe evidence upon which this attachment must be sustained can not go to any other ground for tbe issuance of an attachment except tbe one alleged in tbe affidavit. Tbat portion of tbe evidence which relates to tbe defendant’s leaving tbe territory is entirely irrelevant, because no such ground is alleged in tbe affidavit.

Tbe plaintiff swears that be bad made diligent inquiry in the town of Lewiston and was unable to find where the defendant’s gold dust was deposited. He does not set forth what diligence be bad used either generally or specially.. He does not say tbat tbe defendant refused to inform him where bis gold dust was deposited, or that be ever made inquiry of tbe defendant, or tbat tbe defendant ever refused .to tell him of any other property tbat be owned. Tbe plaintiff does not say be made inquiry at tbe most usual places of making deposits in tbe town of Lewiston, to learn tbe whereabouts of defendant’s gold dust, or tbat if defendant bad gold dust on deposit it was deposited in some unusual manner, either by tbe enjoinment of secrecy or making tbe deposit with some person not in tbe habit of receiving deposits.

On tbe other band, tbe defendant shows tbat bis gold dust was on deposit, as be stated to plaintiff, at tbe assay office, and in tbe custody and safe of tbe most public hotel-keeper in said town without any enjoinment of secrecy. Tbe defendant also shows by twelve witnesses who are acquainted with tbe defendant’s dealings, and many of them have bad extensive mercantile dealings with him for a long time prior and up to tbe time of tbe issuance of this attachment, tbat tbe defendant was always honorable in bis dealings, paid bis debts, bad property to a considerable amount, and never concealed or made any fraudulent disposition of bis property; none of wbicb is denied by tlie plaintiff’s evidence, except by the testimony of one witness.

The facts as shown by the testimony are that the defendant never sold or disposed of any property to hinder, delay, or defraud his creditors. That he denied the indebtedness to plaintiff was a right which the defendant had, and of itself is no ground for the issuance of an attachment. The refusal of the judge below to dissolve the attachment was clearly an abuse of discretion, which should be corrected by this court. The point raised by the appellant’s counsel that the affidavit is made in the alternative was not taken in the court below, and we have concluded to pass that question, as there is sufficient ground to dissolve the attachment upon the evidence submitted.

The evidence on the trial of this case showed that the appellant on the twenty-sixth day of March, 1863, bought an undivided half interest in the pack train of one James Malony, for which he gave the note sued on in the plaintiff’s complaint; that the note was to become due after the train had made one trip to Florence, and was placed in the hands of James O’Neil until that contingency should happen. Malony gave Newberg, the appellant, a bill of sale of said half interest. The purchase price was mentioned in the bill of. sale and in the note. Newberg and Malony went with the train on this trip, and when they arrived at Warren’s diggings they made another bargain and Newberg agreed to biiy the whole train. Malony could not write, but called on A. R. Riddle, an acquaintance of both parties, but who never had any business relations with either, to draw up the writings between the parties. Riddle testifies that the bargain was stated over to him in this wise:

“When they arrived at Warren’s they made another trade, and Mr. Newberg bought all the animals, and they settled up all their business transactions, and mention was made of the note that was left with James O’Neil, and a mule and another animal or two that was left on the road, and the liabilities of the train that had accrued, was all I heard mentioned in the settlement. Newberg was to pay Malony fifteen hundred dollars and take bis note that was left with O’Neil, and the mule and the animals left on the road, and the train, and to pay the liabilities. This was the sum and substance of the settlement that they had in my presence.”

Biddle was shown the second bill of sale and recognized it as the one given at the time this trade was made, and says that he drew up the bill of sale. He also recognizes the one thousand dollar note as the one given at that time which he drew up for the parties. Newberg paid five hundred dollars down and gave the one thousand dollar note' as the balance of the one thousand five hundred dollars. Biddle says:

“There was mention made of the first note, and I was desired to insert it in the bill of sale, but I omitted to do so. Newberg spoke of it afterwards. I told them, as they were partners, and both acquainted with O’Neil, that there would be no difficulty in Mr. Newberg’s getting possession of the note. They both concurred with me in that opinion. . The settlement was intended to render null and void the transaction that they had at Lewiston.”

The first bill of sale conveyed an undivided interest in nine mules and thirteen horses for the consideration mentioned in the first note, to wit, six hundred and twenty dollars, and one hundred and fifty dollars in cash — all branded B. M. The second bill of sale conveyed ten mules and sixteen horses branded E. M. for the consideration of fifteen hundred dollars, and Newberg was to pay the outstanding expenses against the train.

James O’Neil testifies that he saw Malony after the last sale was made; that he then had the six hundred and twenty dollar note and first bill of sale in his hands and Malony said nothing about it, but told him he had a one thousand dollar note on Newberg. Newberg had previously told him the note was paid, but it was when O’Neil was at Florence and he did not have the note' with him; that Newberg afterwards sent an order for it; that when Flan-nagan demanded the note he refused to give it up because Newberg claimed that it was paid. Flaunagan gave him a bond to indemnify him and he then gave it up.

Galbraith testifies that some time in June he asked Malony how he was getting along with Newberg. He said, I have sold out and have Newberg’s note for one thousand dollars; he paid me five hundred dollars cash. Malony said nothing about the sis hundred and twenty dollar note left with O’Neil.

Kavenaugh gave his deposition before the trial on the supposition that he would not be present at the trial. In taking this deposition the plaintiffs were present and had the benefit of a cross-examination. In this deposition he testifies that he was not present when the writings were drawn up by Riddle. That after they had traded, Malony turned the train out to him for Newberg, and Malony said Newberg had squared up with him like a man. As the defendant was about to read this deposition on the trial, it was discovered that Kavenaugh was in the room, and the defendant was then required to dispense with the deposition and put Kavenaugh on the stand to give his testimony orally. Kavenaugh then swore that he was present at the time the writings were drawn up, and that the one thousand five hundred dollars was given by Newberg for one half the train.

Sweeny testifies that he assisted Malony and Newberg to settle, and found four hundred dollars due Malony on a one thousand dollar-note. This was an arbitration settlement in regard to matters that took place after the sale of the train at Warren’s and dated back to that time — but the six hundred and twenty dollar note was not included. Sweeny says that he understood that the one thousand dollar note and the five hundred dollars cash was for Malony’s half interest in the pack train sold by Malony to Newberg and its freight earnings.

Both notes and both bills of sale were given in evidence to the jury. The first bill of sale is for an undivided one half of the train. The second bill of sale is for ten mules and sixteen horses, which was proven to be the whole train.

Upon a motion for a new trial, the defendant sets forth as the grounds of his motion that he was taken by surprise in the testimony of Kavenaugh, inasmuch as he did not know that Kavenaugh would be present at the' trial; that his testimony was different from his statement which he had previously made, and materially different from his deposition; also that he could prove by newly discovered evidence .which he could not by due diligence have procured at the trial, to wit, the testimony of John McConnell, “that Malony said to McConnell in the month of September, 1863, that he [Malony] had no demand against him [New-berg, the defendant] whatever.” Those facts are fully set forth by the affidavit of defendant and the affidavit of McConnell.

The plaintiff objects to this newly discovered evidence on the ground that it is cumulative. This admission of Malony was prior to his transfer of the six hundred and twenty dollar note to Flannagan, and a new and independent fact unknown to the defendant at the time of the trial. Had this admission been proven at' the trial, the testimony of other witnesses to the same admissions would be merely cumulative. In the case of Aitken v. Bemis, 3 Wood. & M. 348, Judge Woodbury said: The meaning of the rule cannot be to exclude as cumulative newly discovered evidence of subordinate points or facts bearing on the general question, for in such views no trial for new evidence could ever be obtained; all new evidence relating, as it must, if it be pertinent, to the general ground or general fact put in issue before. But it must mean that new evidence to a subordinate point or particular fact was before gone into; because it is then cumulative, or additional, as to that fact.”

In the case of Gray v. Karris, Nev. 509, Chief Justice Lewis says: “ To render evidence subject to this objection, it must be cumulative, not with respect to the main issue between the parties, but upon some collateral or subordinate fact bearing upon that issue. If the newly discovered evidence brings to light some new fact bearing upon the main question, and it would be likely to change the result, a new trial should be granted.”

The facts claimed to have been newly discovered are cer-tiiin admissions of Malony, the payee mentioned in the note in dispute, made before the payee transferred the note to the plaintiff. There was no testimony introduced on the trial of such an admission, and the defendant swears it was not discovered until after the trial. There is considerable doubt as to whether the evidence would support the verdict rendered in this case, but as there is sufficient ground for a new trial which ought to have been considered by the court below, we shall set aside the judgment on that ground, and a new trial is therefore ordered and the attachment dismissed.

Judgment reversed.  