
    *Thomas W. Price, Administrator of Philip S. Smith, ads. C. J. Jenkins, Executor of John Jenkins.
    After the testimony on both sides has been closed, and argument of counsel commenced, no witness shall be examined whose testimony may have been discovered since, though it he ever so material.
    
    Would a new trial granted on such ground, query ? 
    
    This was an action on a. promissory note of Philip S. Smith to John Jenkins, for S3,000, dated July, 1810, and payable at five months.
    The plaintiff proved the note. The defendant alleged, that the note was given without consideration, and probably put into the hands of the payee, as the agent of the maker, to be paid over to some third person. The principal circumstances relied upon to establish this defence, were, the poverty of the payee, and that he sometimes transacted business for the maker. On the other hand, it appeared, that the payee gave up much of his time to the business of the maker.
    After the testimony on both sides had closed, and the argument of counsel had commenced, it was alleged by the defendant, that he had discovered, since the testimony had been closed, a witness, whose testimony was highly material to his defence. His counsel, therefore, moved the Court, to be permitted to introduce this testimony on the trial; but the Court refused the motion.
    Verdict for the plaintiff, and this was a motion for a new trial, on the grounds:
    1. That the verdict was against the weight of evidence.
    2. That the presiding Judge erred in refusing to suffer the evidence, which was discovered after the testimony on both sides had been closed, to go to the jury.
    Affidavits were submitted, in support of the last ground, proving the materiality of the testimony discovered, and the fact, that it was not known to the defendant, at the time he closed his testimony.
    The case was tried before Mr. Justice Gkimke, at Colleton, in the Spring Term, of 1817.
    
      
       See 2 Bail. 175. 1 Hill, 404. 1 Mi. C. R. 294.
    
    
      
      
        Alexander vs. Byron, 2 John. Ca. 318. Kelly vs. Executors of Goodbread, 1 N. Car. Term Rep. 28.
    
   *The opinion of the Court was delivered by

Gadsden, for the motion. Huger, contra.

Cheyes, J.

The testimony on the part of the plaintiff was perfect, and entitled him to a verdict, unless the defendant made out a defence by sufficient proof. The testimony adduced by the- defendant, was without precision, and remote in its application to the points of the defence. It consisted almost altogether of the circumstance, that the payee was poor, or rather in embarrassed circumstances. It was calculated to raise doubts in the mind; but by no means to establish belief. If the verdict of the jury had been for the defendant, I incline to think, it could not have been sustained. As it was for the plaintiff, of course, I can have no disposition to disturb it, on this ground.

It has been long the established practice of this Court, not to grant new trials, on the ground, that parol evidence has been discovered since the trial. All the reasons which led to this practice, apply with little or no diminution to the discovery of evidence before the trial was closed. Indeed it ought to be considered as the same ground; for were the Court, under any circumstances, to allow the benefit of testimony, thus discovered, it could only be on a motion for a new trial. The inconvenience to the Court, of a practice which should bring the question before the circuit judge, would be enough to interdict it. But besides, it would frequently be a surprise on the opposite party, which would be highly unjust. He probably would regulate his testimony by that of his opponent. He would dismiss his witnesses, when the testimony was closed in the usual manner; and if allowed to reply, would be unable, by reason of their absence. If allowed to reply, and he should be prepared, it would open the cause again fully, as to him, to adduce any testimony in his power. The irregularity and confusion in the trial, and the danger of frequent perjury, under such a practice, would be found intolerable.

On both grounds, we think the motion ought to be refused.

*Colcook, Nott and Johnson, JJ., concurred.

Gantt, J.

I dissent. The evidence ought, in my opinion, to have been allowed. 
      
       See 2 vol. 452, and note.
     