
    YOUNG against M’PHERSON.
    This was an action of dower, tried before the Chief Justice at the Hunterdon Circuit. The defendant relied on a release of dower from the demandant, to one of her sons, Philip Young, who had assigned it to one Hogland, of whom the defendant had purchased the land. He produced the subscribing witnesses, a son and a daughter of the demand-ant, who swore that they did not see their mother sign or acknowledge the deed, or make her mark; that she could not write or read writing; that they subscribed the instrument as witnesses, at the instance of their brother, and related strong circumstances to show that their brother Philip had practiced a fraud on their mother, by informing [652] her that he wanted her to sign a paper to enable him to settle with the surrogate, he being administrator to his father’s estate. The release was rejected, and the demandant obtained the following verdict :■ — •
    That William Young, husband of the demandant, died seized of the premises, on the 8th day of September, 1795; that the annual value of the premises was eighty dollars; that they assessed the damages for the detention of the dower, over and above her costs and charges, to $612 25, and for her costs and charges, to six cents.
    
      On the coining in of the postea, a rule was taken on the part of the defendant, to show cause why the verdict should not be set aside, and a new trial awarded.
    1st. On the ground of new discovered evidence since the trial.
    [*] 2d. Because the jury had rendered their verdict for more damages than by law, and according to the evidence in the cause, they ought to have done.
    
      Mr. Ewing, for the defendant,
    contended, that the defendant was surprised at the trial by unexpected and extraordinary conduct of the subscribing witnesses to the release; he read several affidavits to show that the defendant had discovered material evidence since the trial, by accident; to wit, that the demandant had acknowledged that she had executed the release. He contended, that where the witnesses to an instrument deny the execution, and swear against their own attestation, it was a proper cause to grant a new trial. 12 Mod. 584; 4- Burr. 2224• The jury have either included the annual value, in the damages which they have assessed, or they have given excessive damages for the detention of the dower. In either case, there ought to be a new trial; he cited 2 Saund. 831, and Lilly’s Entries, 199, to show a difference between the annual value and damages for the detention of the dower.
   Pennington, J.

It is evident that the jury have included the annual value in the damages; but cannot this be corrected by a remission of the damages to the amount of the annual value, which is a subject of calculation.

The counsel for the demandant offered to remit.

Ewing. They are so confounded, that it is difficult to separate them. Besides, it was given in evidence, that the widow was three years in possession, after the death of the husband, for which the jury have made no allowance, and this is error. 2 Bao. 394-

The counsel for the demandant said, that as to the form of the verdict, it was mere form, and could be corrected by calculation, and a remission of damages, if the court was of opinion the jury had done wrong; but the jury have done right; our statute [653] differs from [*] the English statute on the subject. The demandant asks no more than the $612.25 in all. And as to the possession of the widow, she only lived in the house with her son, who took all the profits ; she was never actually seized of her dower. And as to the discovery of new evidence, the court will never award a new trial on the ground of discovery of new evidence, which might have been had at the trial. 1 Sira. 691, 1 Wil. 98. There was no surprise; they set up a release, and ought to have been prepared to prove it; they ought to have examined the witnesses before hand. But even if there was a surprise, they were surprised by their own witness, and not the testimony of the demandant. A new trial has never been awarded on the ground of new discovered parol evidence; it must be a discovery of a new fact. 3 Able. 319. The discovery of merely additional evidence is not sufficient, but it must be a distinct independent fact. Ip Hen. and Mun. 376, 3 Johns. 683, 3 Binney’s Rep. 683, 3 Blae. Rep. 966, 7 Term. Rep. 269

Woodruff, in reply. There is a difference between a plaintiff and defendant in this respect; a plaintiff,'if he finds his proof is deficient, or is surprised by unexpected evidence, he may suffer a nonsuit; but not so with a defendant. As a judgment nisi had been entered, he did not see how a remittitur could be entered.

PiiNiimGTOSJ', «I.

What is called a judgment nisi, is nothing more than a rule to show cause why judgment should not be rendered.

Thving, on the same side. The authorities cited by the averse counsel, establish the rule for which I contend, which is, that the court will award a new trial where material testimony has been discovered since the trial, which could not have been obtained by due diligence before the trial, which is precisely their case. Although the instrumental witnesses were, from necessity, called for on the part of the defendant, [*] yet they were adverse to him, and in the interest of the ' demandant; and for that reason, could not have been previously examined. But even if they had examined the witnesses, they could not have avoided a trial, the witnesses by whom we mean to prove the new discovered matter, were at that time unknown to the defendant; there is no difference between our act, and the statute of Merton, as it respects this case; he thought a remittitur could not be allowed because the [654] excess could not be precisely ascertained. The more especially that part which respected the possession of the premises of the widow.

The court took time to the next morning to consider the case, at which time—

By the Court.

We have considered this case, and from all the circumstances attending it, we^are all of opinion that it is a proper subject for a further hearing. There might be some doubt if it stood alone on the question of new discov- • ered evidence; but that, taken together with the evident error in the verdict, leaves it a clear case; and certainly where witnesses swear against their own attestation, it furnishes a peculiar case, requiring special investigation.

Rule for a new trial, made absolute.

Explained in Martin v. Martin, 2 Gr. 125. 
      
       s. P. 3 Johns. Rep 255. 8 lb. 84. 1 South. 338. 1 JIalst. 484- 1 Green} 177. Vide 2 Aik. 407. 1 Root, 175.
      
     