
    SUPREME COURT—IN BANCO.
    JULY TERM—1880.
    
      Harris, Judd and Me Cully, J.,J,
    
    H. A. Burns vs. John Bowler.
    ON EXCEPTIONS.
    The trial. Justice, considered counter affidavits-filed against the motion for new trial on the ground of newly-discovered evidence ;
    Held, counter affidavits may be filed to throw light upon the question as to whether the evidence is in fact newly discovered and not accessible to the party at the trial-upon the-exercise of reasonable diligence.
   Opinion of the Court by

Judd, Jv.

In this case the jury found for the-plaintiff and the defendant moved for a new trial on the ground of newly discovered evidence, which motion was-heard by the Chief Justice and denied, from which exceptions are taken to this Court.

The defendant contends that if the counter affidavits had not been considered by the Court below, a new trial would necessarily have been ordered, and that the practice of filing-counter affidavits against a motion for new trial on the ground of newly discovered evidence does not authorize a denial of the truth of the statement of what the affidavits show would be testified.

R. E. Bickerton for plaintiff.

A. S. Hartwell for defendant.

Honolulu, July 26, 1880.

We are of opinion that counter affidavits in such cases may be filed, and they will be considered by the Court so far as they throw light upon the question as to whether the evidence is fact newly discovered and not accessible to the party at the trial, upon the exercise of reasonable diligence.

Upon consideration of the affidavits presented, we are of opinion that the evidence offered is not of so controlling and decisive a character as to be productive of an opposite result on a new trial on the merits. Nor- does it seem to us to be evidence which the exercise of reasonable diligence on the part of the defendant could not have procured at the trial.

Burrows and Hardee, the affiants, were well known mechanics in the same line of business as the parties in this case, living in Honolulu and accessible.

There are but few cases tried in which new evidence cannot be hunted after trial, and in order to secure to parties the termination of their legal controversies the Court must be wary about granting new trials upon insufficient excuses for not procuring the evidence when the parties had their day in Court.

Exceptions overruled.  