
    
      PORTER vs. DUGAT.
    
    Appeal from the court of the fifth district.
    If the parties agree that a statement of facts be made by the judge, and he decline doing so, having forgotten the facts and lost his notes, the appellant will be relieved.
    If a plea of prescription be received at the trial, the part pleading it must be permitted to submit the fact of his possession to the jury.
    Whether the plaintiff may be perpetuall enjoined from claiming the premises? Certainly not, when it was not prayed for in the answer.
    Brent, for the plaintiff.
    The singular circumstance attending this case will considerably shorten the argument. The court will see, by a statement signed by the counsel for the petitioner and the defendant, that of the facts and testimony given in this case below, owing to the circumstance detailed no statement has been made out. It is a hard case upon both the petitioner and the defendant. But such as it is, we must submit to it, and it rests alone with this court to relieve the petitioner from the injustice which results from it. I need not enlarge upon the circumstance, and content myself with referring the court to the statement in record.
    To say, that this case is without a remedy, would be unjust, and fortunately for the appellant, the case is provided for by the positive laws of the state, and, before I trouble the court with my remarks upon the other points I intend to make in this cause, I pray that the cause be remanded to the court below for a new trial, because justice requires it. The judge in the court below having omitted to make out the statement of facts as agreed upon, and now not being able to do so, having forgotten the said facts and lost his notes.
    
      West’n District.
    
    
      September, 1820.
    
    No fault exists with appellant.
    The statement negatives such an idea—and will this court suffer his rights, his interests to be sacrificed, when it is in their power to relieve him? Without the facts in the cause, this court cannot decide. The facts from the inattention of the court below cannot be had—and shall the petitioner who is not in fault, who conceived his rights secured, be deprived of an hearing for his, upon an appeal? I trust not, and that this court will extend him the relief asked, and grant a new trial—no injury can be done to the appellee, he is in possession of the property, and if the evidence and facts and law and justice are in his favour, he will have the same opportunity of having his case decided, as if the facts were now before this court. But, reverse the picture, and see the inevitable injury to my client—he is forever hushed. His title to his land gone forever—no remedy, no relief, if this court refuses his motion.
    The law says, it is the duty of this court to remand the cause to an inferior court, from which the appeal is made, whenever it shall appear that justice requires the same. 2 Martin's Dig. 144.
    It has been so decided to be the bounden duty of this court to remand it, in cases where an injustice might be done. Sorrell vs. St. Julien, 4 Martin, 510.
    I will ask this court if, under these circumstances, justice does not require that this cause should be remanded, for a new trial.
    Leaving this part of my argument, I will shew the court from the face of the record and the bill of exceptions taken that, upon two other grounds, this cause ought to be remanded.
    1. Because the court below erred in refusing the petitioner to have the fact of his possession of the land for ten years under a good and just title, submitted to the jury.
    
    2. Because the court below erred in refusing to grant a new trial upon the affidavits filed of new discovered evidence.
    
    I. The court is referred to the bill of exceptions in the record, and also to the plea of ten years prescription with just title. This plea was filed with the permission of the court, after the trial began, upon the discovery of that fact, in the course of the examination of the witnesses—and after it was filed, the petitioner moved the court to permit him to add the fact of the ten years possession for the enquiry of the jury, and to examine witnesses to establish it, which was denied as appears by the bill of exceptions taken.
    This denial of the court was most certainly contrary to law and justice, or why permit the plea of prescription? Why defeat the object of the plea, by refusing the petitioner the right of establishing it? Are not such proceedings absurd?
    The law, says the party, may file the plea of prescription at any stage of the cause. Civ. Code, 482, art. 36.
    It is a highly privileged plea, and yet the judge below would permit the plea to be entered, but defeated its object by a rejection of the proof of possession, or rather by refusing the petitioner the right of submitting that fact to the jury : the only fact by which the plea could be supported. Will not this court correct the error? Does not justice require that for this reason the cause should be remanded? If it does not, I am much mistaken in my ideas of justice.
    The court ought to grant a new trial, upon the discovery of new material evidence to the cause since the trial. 2 Martin’s Dig. 156.
    If the court below refuses a new trial upon the discovery of a new evidence, this court will remand the cause. 4 Martin's, 508, Sorrell vs. St. Julien.
    
    The only way of shewing to the court the new evidence discovered is by affidavits—ib.
    The requisite affidavits were made by the petitioner and a disinterested witness.
    The affidavits shew the newly discovered evidence since the trial, and that the petitioner did know of it before and that with reasonable diligence he could not have discovered it before, and that the new evidence is material, and further states that the new evidence will prove the only fact in dispute in the cause in favour of the petitioner.
    It may be necessary here, for me to observe to the court that this is a dispute about the location of a tract of land, and that by a a case agreed between the parties, there was but one fact to be established, which was where “the grosse isle spring” the beginning boundary of the land was in the year whether at A or B as noted on the plats of survey with the record—if at A, the petitioner was entitled to recover, if at B the defendant was entitled to recover.
    After making this statement I will only observe that the affidavits swear positively that the new evidence, will establish the beginning boundary, “the grosse isle spring” at A and in favour of the defendant.
    
      I am deprived of shewing to this court the force of the new evidence, from the want of the statement of facts, which we have not from the circumstances before detailed, and which more strongly shews the necessity and justice of remanding this cause upon the first ground : for without the statement of facts, it is impossible that justice can be done.
    Porter, for the defendant.
    The first ground, relied on by the plaintiff, to have this cause remanded is, that of the district judge not having it now in his power to make out a statement of facts, which the counsel on both sides consented he might do. This I consider the same thing as if he had moved to remand it, because no statement was made out according to law. The defendant regrets the circumstance very much, but the question here, is who is to suffer by it.
    This court from its organisation, down to the last printed report received here of its decisions, have held in a series of cases beginning with that of Harrison vs. Mager, 3 Martin, 397, and ending with Dennis vs. Bayon, 7 Martin, 446—that when there is no statement of facts, bill of exceptions, special verdict, or case certified, according to law the appeal must be dismissed.
    What reason prevented the appellants in all these cases from bringing up their appeal in the mode pointed out by the acts of the legislature—we cannot gather from the reports—the parties have never attempted to get their appeals maintained by assigning causes why they had not the statement. It is reserved for the ingenuity of counsel here to make the plaintiff's own act, which places him in a disagreeable situation, the ground for extending him relief.
    The act of 1813, 1 Martin's Dig. 442, organising this court, provides that the statement of facts may be made out at any time previous to judgment. In the case of Syndics of Hellis vs. Asselvo, 3 Martin, 201—this tribunal, in an elaborate and most able opinion, entered into the reasons that induced this legislative enactment, decided that it must be done in all cases before judgment signed, and that a statement made subsequently, unless by consent of parties is inadmissible.
    The act of 1817, page 34, sec. 13, introduced some change, on this subject in cases “where the facts proved shall appear on the record by the written documents filed in the same” that the judge might certify, &c. Under this law, it has been decided in the case of Franklin vs. Kimball's executors, 5 Martin, 666, that in a case under this act the judge might make out a certificate at any time. Because when the facts are established by written documents, the same reason does not exist to inhibit the judge from a subsequent statement, as when, twelve months after judgment, he pretends to make out from memory a detail of a mass of parol testimony.
    The proper time then for the plaintiff to make out his statement was before judgment—he has not done so. Can he profit by this circumstance? Surely not. The defendant, it is true, agreed that it might be done afterwards—but, as he had no interest in taking up the appeal, he consented, for the convenience of the plaintiff, who, in adopting this course, necessarily took upon himself the risk of all accidents that might occur, until the statement was completed. But, by the decision prayed for here, the defendant and appellee runs it seems, all the risks—nay more the parties are not be placed in the same situation they were after the verdict, but an important decision is to be made, highly advantageous to the plaintiff, a new trial is to be accorded him—for no other reason, except that he did not bring up the testimony to shew that he might be entitled to it. Can this be justice?
    And this brings us to another distinction in this cause. It is not one where this tribunal is called on to exercise its powers by bringing before it facts which, in the ordinary course of proceeding, it has a right to revise, as in the case where the court tries both fact and law, and from whose decision on each there is an appeal here. But, it is a case where the facts have been already found by a jury whose decision (see acts of the legislature 1817, page 32, sec. 13,) is conclusive on the parties, unless where by law the parties have a right to a new trial. The difference then is, where the trial is by the court below, this tribunal has in its ordinary jurisdiction the right to revise the facts, and no presumption is created against the party cast by the revision. When by the jury, a violent presumption is created of the truth of their finding—and, a much stronger case must be made out, to justify the court interfering in the one case than in the other.
    But the defendant and appellee by the decision prayed for, loses the benefit of this principle, and he is to lose every benefit which the law gives him, every presumption which its wisdom and its justice would have accorded him, had the testimony been sent up. Had that testimony came here, he would have been authorised to insist.
    1st. That a new trial will not be granted where there is contradictory testimony—even tho’ the verdict is against the opinion of the judge, who tried the cause. 3 Binney, 317, Strange, 1142 two cases—1 Caines, 24, 1 Wilson, 22, 2 Binney, 208.
    2d. That it will not be granted when the case las turned on the credibility of witnesses. 7 Binney, 495, 3 Johnson, 271, 1 Bibb, 486, 5 Martin, 333.
    3d. That it will not be granted unless the verdict is manifesely against evidence. Bacon’s ab. A E 664, and cases there cited.
    
    4th. That if the judge below who heard all that was proved—and saw and knew those who proved it refused to interfere—this court could not—all this he could have insisted on : tho’ he would not have been under the necessity of doing so on the evidence. But all this is to be lost to him—and this court is called on to presume. That the verdict of the jury is contrary to evidence. That it is manifestly against the weight of evidence. That the testimony was not contradictory. That it did not turn on the credibility of witnesses. That the judge below violated his duty or erred in refusing to grant a new trial. And this is to be presumed against the defendant, tho' the law presumes the very reverse. The case then stands thus: if the statement had come up there, there is every probability a new trial would not be granted—but as it has not come up, the motion must be accorded. Was any thing like this ever seriously contended for before, and can this be justice?
    The true legal principle is this:—courts in the exercise of their powers will go as far as possible to prevent any injury that may arise from the omission of the parties. They will endeavour to place them in the same situation they were before that omission took place, provided they can legally do so. “But they never will decide an important question connected with the merits of the cause and depending on those merits, merely to enable them to ascertain whether or no the party had a right to that decision.” It is this principle which is sought to be violated here. The court is asked to grant a new trial, a most important advantage to the plaintiff, for the purpose of getting up evidence by which they may ultimately know whether or not they were right in according it.
    The counsel has cited the act of our legislature and the decision of this court, that it is the bounden duty of the tribunal to remand a cause whenever it shall appear that justice requires it. True, whenever legal justice requires it—and whenever the injustice complained of is made apparent by legal proof: here the injustice complained of is supposed. How does it appear to this court that the jury and judge below did injustice to the plaintiff.
    I shall next in order take up the newly discovered evidence: as to that of prescription, there will be little or no difficulty in regard to it.
    The counsel has quoted the acts of the legislative council (2 Martin’s Did. 156, sec. 6,) that the discovery of “ new material evidence ” is a ground for a new trial. But that act also gives the limitation "which the party could not by reasonable diligence" have discovered before. This too is the language of reason as it is of all the authorities on the subject. Strange, 691, 1 Wilson, 98, 7 T. R. 269, 2 Binney, 582, Hardins' Rep. 342, 1 Bibb, 420.
    The only questions then are did the plaintiff use due diligence? And was the evidence material? Both I think must be answered in the negative.
    This suit, as correctly stated by the plaintiffs’ counsel, depends alone upon the location of a grant which both parties hold under—their relative position in it being changed as it is decided to begin at A or B, as represented on the plat of survey. This was the matter in contest from the time the suit commenced, and that to which the attention of each party has been, or ought to have been anxiously directed from the first. The petition was filed in May 1817 and the cause was tried in Oct. 1819 (see record) there was of course two years and six months for each party to prepare himself on this single point.—
    Now, in all this time it was the duty of the plaintiff, who was preparing for the trial of the cause, to have sought for this testimony. The first thing a man would naturally enquire for in a case of this kind, that turned on the location of his grant, who am I bounded by—how were those that joined on me located—were there older or younger grants than mine—were they surveyed—have the surveys been returned? All these are proper and material, and necessary enquiries and such as every diligent man makes. If they had been made by the plaintiff, he would have had no difficulty in getting this information, while he never heard of until the evening of the day in which the jury gave in their verdict: for the papers were all in the land office in Opelousas.—The testimony here was not hid in a corner, was not in the possession of a private individual, who might have concealed it from him. It is sworn to be in the surveyor’s office: a public office open to every one.—The title which came to his knowlege is also sworn to have been confirmed by the United States; it was there in the register’s office at Opelousas which is open to the inspection of all—The first place, which every one examines who has a land suit to try.—He never, it appears, ever looked into the surveyor’s office to know how the grant he claimed under was located by the United States, if he had he could not have failed to have found Drake’s besides it—for Johnson (see affidavit) swears that it has been returned there by the deputy surveyor. Let it be remarked too that, during all the time that elapsed from the bringing of the suit until its trial, he lived in the next county, where these papers were deposited. If this is reasonable diligence, to lay the ground of a new trial—it may be simply asserted that the want of it can never be brought home to any man. Another fact, highly illustrative of his diligence: the very witness, who communicated the intelligence to him, is one who surveyed the land by order of the court, (see plat of survey) and who was sworn on the trial before the jury (see Johnston’s affidavit.) The court is asked to compare the facts here, with the cases already cited on this branch of the subject, where a new trial has been refused.
    But the evidence was not material and could have had no effect on the cause. The dispute between the parties here was respecting the original location of an antient Spanish grant, issued in the year 1781. The witness swears that he has seen a Spanish title—he thinks an order of survey to one Aaron Drake, for twenty-five arpents lying below A so as to include B. Be it so, and what does that prove? Why nothing, unless we knew that the Spanish government never issued two titles for the same land. Unfortunately, however, this country has had melancholy experience on the contrary. We know that they interfere too often to justify any one in drawing the conclusion that, because one grant commences at a given point, say A, that the other must necessarily be at a different place say B. If such evidence had been introduced, it would only have proved the two titles interferred, but it would not have controlled the location of ours, as it is the oldest grant, See Johnson’s evidence where he states that Drake’s title called to bind on De la Houssaie. On the whole, I cannot see what weight this evidence could have had, supposing it to have been produced on the trial. It is of that kind which is generally furnished, by way of consolation, to the party cast in the suit.
    It may be perhaps urged that it would have been useful to the plaintiff in giving more weight to the other evidence produced by him. But new trial, are never granted to let in cumulative testimony to a fact disputed at the trial. 8 Johnson's Rep. 86. It would be endless, says the court, if every additional circumstance bearing on the fact in litigation was a cause for a new trial.
    The counsel states that the affidavits are positive, as to the fact they will establish—but it is the court not the party, that must judge of the materiality of evidence, in applications of this kind. 1 Caines' Rep. 24, 2 ib. 67.
    With respect to remanding on the plea of prescription, the defendant has not the slightest objection if the court is satisfied that on legal principles it has the authority to do so. But in remanding it the defendant insists that, it must be for enquiry on that fact alone. If the whole cause is to be reexamined whenever a party pleads prescription—which he may do at any stage of the cause, it is quite obvious that every litigant can have his case twice tried by keeping back this plea until the other facts are found.
    The counsel states that the judge permitted him to file the plea, but refused to let him submit it to the jury, and ask, can any thing be more absurd—and I say that nothing in my opinion can be more correct. A slight examination will prove it. The cause had stood at issue for five terms of the court—the parties came prepared to try the question arising out of the pleadings—a number of witnesses attended at a most ruinous expence—the jury were sworn to try certain facts, (see record) after they were sworn to try the facts, the plaintiff amended his petition by pleading prescription, and then moved to have that fact submitted to the jury. To this the defendant’s counsel justly objected that they had not come prepared on that branch of the enquiry—had received no notice of it—had never turned their attention to it, and could not go into the trial of it then. The court decided that the defendant could not be compelled to try the question of prescription on so short notice—that, as the jury were sworn and the trial in part gone into the court could not discharge them—That, if the court had the power, it would not, as it would only have the effect of forcing the parties to return at the ensuing term, with all the testimony then hearing on the trial—that this course of proceeding worked no injury to the plaintiff—that an issue could be made up on the amended petition and sent to another jury for trial, and that judgment would be suspended, on the facts then found, until that issue was tried.
    There is no doubt then—but the court decided correctly. For as prescription can be plead at any stage of the cause, it follows of necessity that it can be tried at any stage of the cause, as well after the other facts are found as before. It is the duty of the court to see that this privilege, which the law gives one party, is not used to the injury of the other. It would be monstrous for example to say that if the plaintiff had chosen to file his claim by prescription after the facts were found by the jury—that the whole case would have to be tried again. It would be equally unjust, where he did not amend his petition until after the jury were sworn and had gone into the trial. If a party will delay this plea to so late an hour, all he can expect is to have it tried. But he ought not to be allowed to use it as a weapon of annoyance against his adversary, by forcing him to go into the examination without notice, or turning him over to another term on the questions at a ruinous expence—nor ought he to have the privilege of obtaining a re-examination of all the other 
      
      facts in the cause, merely because it pleased him to present that of prescription too late to be submitted to the jury, who tried the other questions that arose out of the original pleadings.
    Why the plaintiff did not think proper to have an issue made up, and this question of prescription tried, before he appealed—it is not for the defendant to say. Whether he has not lost the benefit of it by the course he has thought proper to adopt, is left to the court to decide—the defendant repeats that he is willing, nay desirous to enter into the enquiry as far as that enquiry can affect the merits of the cause; for he too will rely on prescription. But he regrets the delay, and the expense that must attend it. His poverty rendering him unable to sustain a protracted contest of this kind.
    I trust then I have shewn the plaintiff has no right to a new trial. If the cause is remanded on the question of prescription, it must be on payment of costs by the plaintiff, as it was his own fault it was not tried before he took the case up.
    I shall not travel out of the record—nor say one word of the equity of this case, merits or justice—I wish I was permitted to do so, and shall conclude by submitting it with confidence to the court.
    Brent, in reply.
    The first ground taken in this cause, was to move the court to remand it, because the judge had not made the statement of facts, as it had been agreed he should do (see statement in record.)
    In replying to this motion, it has been observed that, it amounts to a motion to remand this cause, because “no statement was made according to law.”
    By a reference to the very numerous cases, from that of Harrison vs. Mager, 3 Martin, 387, down to Dennis vs. Bayon, 7 Martin, 446, where the appeals, for want of statement were dismissed, it will be seen that the appeals were there dismissed, because the appellants had neglected to make out the statement, and did not account for not doing it. This is a very different case in all its features. Here the appellant, as will be seen by reference to the statement on record, was not neglectful of the legal requisites, in proper time. Before judgment signed, he offered to make out the statement of facts, and not being able to agree with the defendant’s counsel, it was agreed, by both the parties, “that the judge should make out the statement of facts, at that time or after judgment signed, as he the judge should think proper”—which the judge promised to do. Is this a similar case to any one of those refered to? And in what respect has the appellant been neglectful, or in the wrong? He offered to make out the statement of facts, at the proper time—but not being able to agree with the defendant, at the same time, the judge offered to make out the statement of facts himself, which both the appellant and appellee agreed to—and the appellant, resting upon the agreement, made in good faith, sanctioned in open court, is now told that this case does not differ from ordinary cases, where no statement of facts have been made. If such a doctrine should be contenanced, it might in truth be said “that there was no such thing as justice, and that courts were only snares to entrap the honest.”
    The counsel for the defendant says that the petitioner ought not to be permitted to take advantage of his own wrong—nor does he ask such thing—he is in no wrong. He proceeded regularly to bring up the testimony in the case, and the defendant, knowing and feeling the justice of his case, now wishes to shut him out of this court by objecting to the cause being remanded—Is this justice?
    It has been frequently repeated, that the appellant ought to have had the statement of facts made out, as the law directs, and that he ought to have done it himself. There are three ways pointed out by law, to make out the statement of facts. The parties can do it, or their counsel or the court, if they disagree, see act of 1813. 1 Martin’s Dig. 442. Here the law declares, that the statement of facts shall be made out, by the judge, if the parties or counsel disagree. In the very case before the court, the counsel not agreeing, it was consented that the judge should make out the statement. He has not done it—nor can the parties yet agree upon the facts, and would it not be an injustice to condemn the appellant, when he has shewn that he has been guilty of no omission? If the arguments of the defendant’s counsel are to prevail, the greatest injustice will often follow. The party, in whose favour judgment below is rendered, has nothing to do, but to disagree as to the facts with his adversary: and if the judge refuses, or neglects to make out or forgets the facts in the cause, the appeal must be dismissed—Is this justice? No, this court sits here to see that justice shall be done, and wherever, from the proceedings in causes it shall appear that an injustice might result from any act not committed by the neglect of a party in a suit, their bounden duty, in the words of the decision of this court before quoted, is to see that justice be done to all and that the cause be remanded. In this case it is as much the defendant’s fault, as the petitioner’s, that it was agreed that the judge should make out the statement of facts.
    It is said on the part of the defendant that this court ought not to remand for the reason given, because the finding of the jury, and the refusal of the court to grant a new trial, presume in favour of the defendant and that this court would not grant the motion, if the evidence was before them. I am astonished at such an argument—certainly, the proceedings of the court below presume nothing against the petitioner. It is of the injustice of those proceedings, the petitioner complains: and I do not conceive how proceedings, alleged by the petitioner to be unjust and illegal, can operate against him—The law grants the appeal, without attaching to it any such presumptions, as contended for,—but, if this court is to presume at all, it will rather presume in favor of the petitioner: for, if the evidence was in favor of the defendant and his case a good one, why fear another trial? I do not mean to cast any reflection upon the judge below, but it is extraordinary, indeed, that the facts were not made out by him.—I will not say that he omitted it, to defeat the correction of an error in his court—I do not believe that such motives actuated him, but yet if presumptions are to have weight, in this case, the petitioner might urge all these things, as presumptions in his favor.
    I admit, as stated in the argument of the defendant’s counsel, that this court might not have granted a new trial, if the testimony had been contradictory; but I contend that, where there was no contradiction and all the evidence in favor of the petitioner, this court would order a new trial—and this the court might have been satisfied of, in this case, if the statement of the facts had been made out, as agreed upon.
    
      It is also observed, that if the judge below, who saw and heard the testimony, refused the new trial, it is to be presumed that this court would also.—It often happens that, in cases like the present, where upon an appeal justice can be had, the court below, indecisive as to the opinion it ought to give, prefers to maintain the finding of a jury, to take the responsibility on itself, and at the same time that it decides, expresses its doubts, but reconciles its opinion with a belief, that if wrong, a supreme court will correct it; such may have been the case here; but I must confine myself to the record.
    What inconvenience or injustice to the defendant can result from this cause being remanded? He is in the peaceable enjoyment and possession of it, and if his cause is a good and just one, he has nothing to fear. The same testimony will be heard again and if, in his favor, he is certain to succeed, and the petitioner will be compelled to pay all costs, and will be the loser by it.—This is not like a case of debt, or where the party, who asks for relief is in possession: here delay and procrastination are no motives, can be no object to the petitioner; for the defendant possesses the property.
    On the contrary, if the court will not remand this cause for the reason given, and if the law, if the testimony, if justice are with the petitioner, where and how can he ever obtain relief? Never. His fate is sealed, his rights are gone; his property the reward of his labour and his honesty, the only support of his family, is lost to him forever.—Before this court will do any thing, which might be attended with such evil consequences, I call upon it, to pause and reflect well, and, in doing it, I am satisfied they will remand this cause, and have it placed in a situation that justice may be done.
    
    Again, I repeat that the judgment of the court below presumes nothing in its favor, and if necessary to rebut this idea, I might only refer to the number of cases, reversed by this court, by which it would appear, that the presumption is rather the other way.
    The defendant’s counsel objects to this cause being remanded upon the ground of newly discovered evidence; and as he has taken up this part of the argument, before the second ground taken by me, I will follow him in his argument.
    The serious objection, to this part of my argument, is that the petitioner did not use “reasonable diligence” to discover the new evidence; I beg the court to observe that neither the law, nor the practice of any court, requires the diligence to be more than “reasonable diligence”—It does not require that every thing should be done, that might be done to discover the new evidence; it only requires that reasonable exertion, which every man gives to his affairs, that ordinary attention to hunting up testimony which would shew that he procured all the evidence within, the compass of his knowlege, and that he did not keep back any testimony which he knew of, or which, by reasonable exertion, he might have discovered; To judge of the reasonable diligence, the court must look at the affidavits and take the facts as they are there sworn to.
    The defendant says that no diligence was used by the petitioner, that he ought to have looked for the new discovered evidence in the surveyor’s office, where it appears, by the affidavit of Johnson, he saw it; now I differ in opinion with the petitioner’s counsel; the surveyor’s office is not a place to look for such papers; the register’s office is the place, and as the petitioner swears that he used “reasonable diligence” to procure all testimony, that might be material to him, the presumption is that he looked into the register’s office for all papers that might establish the beginning line of his land. But, how can this court reasonably require that the petitioner should have looked into the surveyor’s office for this new evidence, when he swears positively that he knew nothing of it, until after the trial? The defendant’s counsel also observes that the witness, who told the petitioner, was the surveyor who surveyed the land, and sworn upon the trial, and yet it is singular he did not speak of such evidence before? As singular as it may appear, the witness swears he never named it to the petitioner, until after 
      the trial; so that the petitioner knew nothing of it. The witness having been sworn, upon the trial, who communicated the discovery of this new evidence, makes no difference. Jackson vs. Laird, 8 Johns. Rep. 484.
    The counsel says the first enquiry ought to have been by the petitioner, by whom he was bounded: and in making this enquiry, he ought to have looked into the surveyor’s office. Not so: by a reference to??? the??? petitioner’s title, or grant under which he ??? he is bounded by no person, so that from it, be obtained no information, he then ought to have appeared, at the register’s office, which it is presumed he did, where all titles are registered, he finds nothing of it, and in reason it could no be expected that he looked further.
    But, says the counsel, the evidence cannot be material; I think the contrary. The petitioner and Johnson state, in their affidavits, that the survey and the proceedings theron, will establish the “grosse isle spring” at A, as contended for by the petitioner; now this court knows, that it was usual, under the Spanish government, when surveys were made, for the owners of the adjoining lands to be present, and suppose, in this case, the original grantee, under whom both parties claim had been in person present at the survey, stated in the affidavits, and had signed the same declaration together, with the other neighbours 
      and the surveyor, that the “grosse isle spring” was at the spot marked A, and that was the beginning boundary of his (De la Houssage’s) land, from which corner Drake took his beginning, I ask this court, if such evidence would not have been material: and yet, we must believe that such was the fact, as Johnson swears, not that the survey alone, but that the survey with the proceedings thereon, will establish the “grosse isle spring” at A. How can it be contended then that this evidence is immaterial?
    With respect to the plea of prescription, I do not conceive that the defendant’s counsel has said any thing, to shake the position I have taken.
    It is contended that the court below did not err, in refusing to submit the possession of the petitioner as a matter of fact to the jury; I think I have already shewn that it did.
    It is said that the defendant could not be compelled to try the question of prescription, on so short a notice, nor is it contended by me that he was.—If he was not ready, a juror could have been withdrawn, and the case continued for trial to another term; such an indulgence, if asked for, could not have been refused; but none such was claimed; but the defendant ought to have been ready, to put that fact at issue by his answer.
    
    As I shewed before, the fact of possession often comes out upon the trial; which was the case here, and it was to meet such a case, that the law permits the plea of prescription to be entered, at any stage of the trial, and when entered, with due respect to the opinion of the counsel, I think it is an exception to the action upon its merits, and in regular proceedings ought to be disposed of first.
    
    I beg leave to correct the statement of the defendant’s counsel, that the court below offered to call another jury to try the fact of possession. Such was not the case, nor does it appear from the bill of exceptions; but even if it had, I doubt much if such a proceeding would have been legal. The amended petition could not be considered, but as a part of the original, and the pleas in issue, the same, as if originally made up, and the law declares that “the jury are sworn” to decide the question of facts alleged and denied in the pleadings, acts 1817 page 32, sec. 10; before quoted. The possession for ten years, under just title, was a fact alleged by the petitioner and denied by the defendant; and of course one of the facts to be decided by the jury. But was ever such proceedings heard of?—As well might it be contended that a separate jury could be called to try every separate fact at issue, in the cause: for if it can be done to try one fact, it can be done to try one hundred.
    
    But again, it does not appear that the prescription was ever tried, the petitioner claimed the right of submitting the fact of possession to a jury; the law gives him that right—it was not allowed in the court below and judgment was rendered, without this fact being found; of course, the judgment is illegal and ought to be set aside.
    In this case, the defendant cannot complain of the plea of prescription, on the part of the petitioner, taking him unprepared at the trial, for the defendant, in his answer, alleges that he, the defendant, had been in possession of the land for ten years under good title; which was denied by the petitioner (see second page) so that in fact it was put in issue by the defendant, who came prepared to support his plea, and if the petitioner, who was not prepared to prove his possession, until upon trial offered ready to try that fact, the defendant cannot complain—and the court certainly erred in not submitting it.
   Martin, J.

delivered the opinion of the court. The object of this suit is the recovery of the possession of a tract of land, from which the plaintiff complains he was wrongfully ousted by the defendant. The latter pleaded the general issue.

At the trial, after the jury were sworn and issues submitted to them, the plaintiff prayed leave to add a plea of prescription, and submit the fact of the alleged posession to the jury. The district court allowed the plea to be entered, but refused to allow the fact of possession to be submitted to the jury; on which a bill of exceptions was taken.

The jury found the issues for the defendant.

The plaintiff moved for a new trial, on the ground of new and material evidence discovered since, which he could not, by ordinary diligence, have discovered before—and on the ground that the verdict was contrary to evidence. He added to his own affidavit that of one W. Johnson, the person who had informed him of the new evidence.

The new trial was refused, and a bill of exceptions was taken.

The district court gave judgment, that the plaintiff be perpetually enjoined front asserting any claim to the premises and pay costs. The plaintiff appealed.

The parties agreed that a statement of facts should be made by the district judge, who promised to do it. Afterwards, being called upon for it, he answered he had lost his notes, and could make no statement.

It appears to us the district court erred, in perpetually enjoining the plaintiff from asserting any right to the premises. It is not clear that a defendant can obtain such an injunction, and, in the present case, it was not prayed for.

It is not the fault of the plaintiff, that the district judge mislaid his notes and was thus unable to make the statement he had promised, and which it was his duty to make; the plaintiff ought not to suffer from an accident which he could not control.

If there was any possibility of a statement being made, we would issue a mandamus, as we did in the case of Broussart vs. Trahan's heirs, 3 Martin, 704, in which the district judge neglected to draw a bill of exceptions, which he had engaged to prepare.

With a statement of the evidence before the jury, we could ascertain whether the verdict be contrary thereto and whether the district court erred in refusing the new trial.

It certainly erred, in refusing to allow the possession, alleged in the plea of prescription, to be submitted to the jury.

For these reasons, and as it is not clear that the plaintiff could by ordinary diligence have discovered the evidence, mentioned in his affidavit, we are of opinion he ought to be relieved.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled voided and reversed, and that the case be remanded, for a new trial, with directions to the judge to allow the fact of possession to be submitted, and that the defendant and appellee pay the cost of this appeal.  