
    James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased.
    Where a judge of the circuit court signed a bill of exceptions, certifying that a motion, accompanied with affidavits, was. made at a previous term, though the record of the proceedings in the case of that term contain no evidence of the fact, yet this court is bound to receive and recognize the statements in the bill of exceptions as conclusive, and treat them as part of the record.
    A motion for a new trial at law, may be continued, by the order of the court, until a term succeeding that at which the trial took place. Without a special order of continuance the motion would expire with the term.
    Where a verdict had been rendered upon a promissory note against the maker, in favor of the plaintiffs’ intestate, and the maker afterwards filed an affidavit of witnesses that they had heard the intestate acknowledge the payment of nine hundred dollars on the note, and filed also his own affidavit, showing that the evidence had come to his knowledge since the trial, and that he had used due diligence to discover it: Meld, that the defendant was entitled to a new trial.
    In error, from the circuit court of Adams county.
    The defendants in error sued the plaintiffs in the court below, upon a note payable to Earl Clapp, for twelve hundred dollars. The defendants plead non assumpsit,• and payment. On the 10th day of December, 1841, the case was submitted to a jury, and verdict rendered by them in favor of the plaintiffs below for one thousand four hundred and forty-eight dollars, and judgment was entered accordingly.
    The record then recites as follows :
    “And afterwards, at the May term, 1842, came the said defendants, by their attorneys, and made their motion for a new trial in this case, and thereupon, the court having heard said motion, it was ordered that said motion be overruled, and not granted. And afterwards, at the May term, 1842, aforesaid, the said defendants filed their bill of exceptions, to wit:
    “ State of Mississippi, ( In Circuit Court, Adams County. $ May Term, A. D. 1842,
    “ Delia Clapp, Administrator, A'c. v. ) T..„ - „ James JR.. Kane and Richard Henuessee. $ 1 xceP ions.
    
    “ Be it remembered, that after the trial of this cause, and the rendition of the verdict of the jury, which said cause was tried, and verdict rendered at the November term, A. D. 1841, of the court aforesaid, the said defendants, at the term last aforesaid, moved the court for a new trial in said cause, on the ground .of newly discovered evidence, and placed the motion for same upon the motion docket of said court, and in said motion referred the court for the grounds for granting same to ‘ Petition A,’ and ‘ Affidavits B and C,’ filed with the papers in said cause, which said motion was placed upon the motion docket aforesaid, immediately, that the causes and reasons for same came to the knowledge of said defendants, and were communicated to their said attorneys, which was a few days after the trial of said cause, and during the term last aforesaid, of said court, and which said ‘ Petition A,’ and ‘ Affidavits B and 0/ are as follows:
    “ State of Mississippi, ? In Circuit Court, Adams County, ) November Term, 1841.
    “James R. Kane, one of the defendants in the above stated case, and the principal in the note upon which this action is founded, states upon oath, that since said trial there has come to the knowledge of said parties defendant in this case, new and important evidence for the, defendants, the existence of which was at the time of the trial, and before, wholly unknown to said defendants, that said defendant Kane was fully aware of the facts hereinbefore stated, but was unacquainted with the existence of legal proof of same, that he made diligent inquiry, and industriously endeavored to discover and produce on the trial of said action, evidence of the facts hereinbefore set forth, but utterly failed therein, and that it was not until a day or two since, and since said trial, that the existence of evidence of said facts has come to his knowledge, that upon the discovery of same, he communicated to his counsel the fact of the discovery of said evidence, who recommended him to prepare affidavit of the truth of same, and to move this honorable court for a new trial in same, upon the ground of newly-discovered evidence, that said evidence is not of a cumulative character, and would produce a different result upon another trial. That the evidence is as follows:
    
      “ That one Joseph Guss will prove, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that said James R. Kane had paid him, said Clapp, the sum of nine hundred dollars upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on in this action.
    “ That John P. Morris will prove, that about three tyeeks previous to the death of Earl Clapp, mentioned in said action, the said Clapp stated, to him, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them.
    “And affiant further states, that said Morris and Guss are residents of this county of Adams, and that he expects to obtain their presence at the next term of this court, to testify as above stated, he therefore prays a new trial, &c.
    “ James R. Kane.
    “ Sworn to, and subscribed before me, 20th Dec. 1841.
    “Sam’l. Wood, Clerk.
    “ By James D. Galbraith, D’y. Clerk.
    
    (Affidavit B.)
    “ State of Mississippi, ) In Circuit Court, Adams County, \ November Term, 1841.
    “ And Joseph Guss, being duly sworn, deposes and says, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that James R. Kane had paid him, said Clapp, the sum of nine hundred dollars, upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on, in this action.
    “Joseph Guss.
    “ Sworn to and subscribed before me, this 18 th Dec. 1841.
    “Sam’l. Wood, Clerk.
    
    “ By James D. Galbraith, D’y. Clerk.
    
    
      (Affidavit C.)
    “ State of Mississippi, ) In Circuit Court, Adams County, $ November Term, 1841.
    “ And John P. Morris, being duly sworn, deposes and says, upon oath, that about three weeks previous to the death of Earl Clapp, the said Earl Clapp stated to this affiant, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them. J. P. MoRRis.
    “ Sworn to, and subscribed, before me, this 18th Dec. 1841.
    “Sam’l. Wood, Clerk.
    
    
      “ By James D. Galbraith, D\j. Clerk.
    
    
      “ That notice of the pendency of said motion was duly made arid given to the plaintiff and her.attorneys; that after the trial of said cause, and before the said motion for a new trial in same was called for a hearing and arguments, the Hon. C. C. Cage, who was the judge presiding at the time of the trial of said cause, and before the regular call of said motion in its due course, exchanged his circuit with the Hon. Y. T. Crawford, the judge of the eleventh judicial district of the state aforesaid, which said Hon. Y. T. Crawford thereby became, and was the presiding judge of the said circuit court of Adams county, at the term last aforesaid, at the time when the said motion was duly called for a hearing and argument of same, at which time, defendants and their attorneys, were ready to submit same to the judgment of the court. That the said Hon. Y. T. Crawford, upon said motion being called, as aforesaid, in due course, ordered the said motion to be continued until the next term of said court, to wit, this May term, A. D. 1842, and refused to hear said motion, declaring that he was unwilling to hear and decide a motion for a new trial in a cause which had not been tried on a judgment had while he was presiding as a judge. That at the present term of this court, to wit, this May term, A. D. 1842, the said Hon. C. C. Cage, presiding, the said motion continued as aforesaid, was again duly called in its order upon said motion docket, for a hearing of same, and the said Petition A,’ and ‘ Affidavits B and C,’ were read to the court; immediately on hearing which, and before anything further was said, done, offered or insisted, .either in favor or against said motion, the said court decided that it would not hear said motion discussed, declaring that same should have been decided at the term of said court when said motion was preferred, and placed upon the motion docket, and ordered and adjudged that said motion should be overruled, to which judgment and opinion of the court in refusing to hear said motion, and in overruling it, the said defendants, by their counsel, excepted, and prayed the court to sign and seal this their bill of exceptions to same, and that the same be duly filed and enrolled, and made a part of the record in this said case, which is accordingly done.
    
      “ ChaRles C. Cage.” [Seal.]
    The defendants sued out this writ of error.
    
      Freeman and Reed, assigned the following for error :
    . 1. That the court below erred in refusing to hear the motion for a new trial, at the November term, 1841, of the court, it being the term at which judgment was rendered.
    2. That the court erred in continuing said motion until the next term thereafter.
    3. That the court erred in not hearing said motion at the May term, A. D. 1842, it being thé term to which said motion was continued.
    4. That the court erred in overruling said motion for a new trial, without hearing an argument.
    
      Reed, for plaintiffs in error.
    1. The first error assigned is, that the court erred in refusing to hear the motion for a new trial, at the term at which judgment was rendered.
    It is the settled practice of nisiprius courts to entertain motions for arrest of judgment at the term at which judgment was obtained, and such has been the invariable rule in the courts of this state. A departure therefore from this rule, was manifestly erroneous.
    
      2. The second error assigned is, that the court erred in continuing said motion. The court should have heard an argument, and sustained or overruled the motion. It is no excuse that when the motion came on to be heard, a different judge presided from one; before whom the judgment in this case was rendered, the court was one and the same; the mere exchanging of circuits by the judges does not change the character or authority of the court; the judges were created with the same jurisdiction, by the same law, and endowed with same powers. It was a temporary exchange made by virtue of the laws of the state, and intended to secure the ends of justice to litigants, and not for the purpose of depriving any party from being heard, or having full and ample relief. The judge who presided at the hearing of the motion, was fully authorized to entertain it, and by not doing so, committed an error which this court will undoubtedly correct. See H. & H. p. 481, for the statute giving circuit judges power to exchange circuits.
    3. The third ground assigned for error is, that the court below, erred in not hearing said motion, at the subsequent term. It was not too late to correct the mistakes of the previous court, and certainly, by every rule of law, a party has a right to be heard by himself or counsel. The court by interrupting the counsel for the plaintiffs in error, and refusing to hear an argument, committed a palpable and open violation of the rights of the plaintiffs in error, and assumed an authority which is not conferred upon him, and which was in direct contradiction of every principle of law, and arbitrary in the extreme. We ask this court to check such assumption, and such evident violation of the rights of litigants.
    4. The fourth ground assigned is, that the court erred in overruling said motion.
    In this case, there were affidavits filed with the motion for a new trial, setting forth, first, that the plaintiffs in error had discovered new testimony; second, that the testimony was material, and lastly, the affidavits.of the witnesses as to what they would|testify, were also filed with the^motion, as appears of record.
    Then upon the merits of this motion, the court below clearly erred. All the authorities go to show, that when a party has entered his motion for a new trial, on the ground of newly discovered evidence, the courts will grant a new trial on the parties filing affidavits of the fact, as well as what the evidence will be, that courts may judge of its materiality, and whether it is cumulative. See 2 Caines, 155. 3 Caines, 182. 18 Johnson, N. Y. 489. 7 Mass. 205. 15 Mass. 378. 2 Binney, 182. ■5 Serg. & Rawle, 41. See also 2 Howard, 773, Hare v. Sproul.
    
    By looking into the record, the court will see that the plaintiffs in error, on the trial below, withdrew their plea of payment ; that therefore this newly discovered evidence is not cumulative, as it does not appear that any payment was attempted to be proved; on the contrary, the plea of payment was withdrawn, and the plaintiffs in error were forced to rely upon the general issue. The decision in Hare v. Sproul, in 3 Howard, is therefore conclusive as to this point.
    It is the province of courts to grant new trials, where they see that manifest injustice has been done. See Daniel v. Rose, 1 Nolt <fc McCord, 33.
    In-this case, a judgment now stands against the plaintiffs in error, for $1448, when it appears by the evidence of two disinterested persons, that a greater portion of that debt has been paid and satisfied; certainly there has been, and will be injustice done the plaintiffs in error, if this.court does not overrule and reverse the judgment of the court below.
    
      Heioett, for defendants in error.
    For defendants in error, it is submitted to the court,
    .That it is not competent for a judge in the circuit court, by a recital of any fact in a bill of exceptions, as having transpired at-a.previous term, to make that fact thereby a part of the record of that court, when in the record of that previous term, such fact does not appear.
    
      
      “ Matter of record is to be proved by the record itself, and not by evidence.” 3 Tomlin. Law Die. p. 300, quoting 21 Cor. B. R. Now, certainly, here the signature of the judge in the court below is attempted to be used as evidence of a fact which transpired at the previous term, and not in the record of that term. True the bill of exceptions is made a part of the record; but it is submitted that it is only a part of the record, for such matter as is legitimately included in the bill of exceptions. If the recollection of the judge below is to increase, it may also diminish the record ; and if it properly extends back for that purpose, to one term, it may to any still more distant period. During the term in which any judicial act is done, the record is alterable in that term, as the judges shall direct; when the term is passed, then the record admitteth of no alteration, or proof that it is false, in any instance. Co. Lit. 260. 4 Rep. 52. It is true this is modified by our statutes; but then it can only be amended on the authority of something appearing in the papers of the case, whereby the amendment may be guided and directed ; this, too, must appear in the record, and of this nothing in this case appears.
    If this view is correct, then there does not appear any motion to have been made at the term, (November, 1841,) at which, the judgment for defendants in error was rendered; and it does not require notice in this court, that it was too late to apply at the succeeding term, (May, 1842,) for a new trial on any ground.
    If, however, this court consider that the bill of exceptions can be a part of the record of the preceding term, to that at which it was taken, and that, too, of facts which are supposed to have transpired at that previous term, and not noticed on the record of that term, then the position is taken for the defendants in error, that on such a motion being presented to the attention of the judge presiding, though he had not heard the trial of the cause in which the motion was made, it became his duty to hear that motion, with the best lights before him ;„ and that his refusal to do so was the point at which the plaintiffs in error should have sought the interposition of another tribunal. That it was not competent for them to let it Jie over to another term of that court, and then demand a now trial.
    We, however, contend again, that this court will not disturb the judgment now rendered in the court below, if, upon examination, they are satisfied that the application for a new trial could not be granted. The motion below was overruled ; whatever were the reasons given, it virtually and really was a refusal of a new trial. All the evidence on which that application was based, is before this court, all they will be allowed to offer, if it is returned to be heard below. If, then, this court believe a new trial cannot be granted, this court will not disturb the judgment of the inferior court. See Graham on New Trials, p. 717.
    All proper, all possible diligence, must be shown to have been used, to obtain the newly discovered testimony, previous to trial; no excuse is offered ; it does not appear why it was not then produced ; the witnesses* are said to be resident in Adams county, the place of trial.
    This court will also, in looking into the whole case, take notice that the bond in this case given, does not comply with the law, and that it is defective, according to the decision of this court, in the case of Rogers v. Galloioay, 3 Howard, p. 58, and also p. 34, in case of Stamps v. Newton. It also appears settled, that according to the decision of this court, in 7 Howard, p. 75, in the case of Porter, Appellant, v. Grisham, this court will require the strictest compliance with law, in the bringing cases before this tribunal, whether by writ of error or by appeal.
    • If the rigor of these decisions has'been relaxed, still it is submitted, that on a defective bond, this court will dismiss the supersedeas, if no further action is taken thereon.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

It seems that on the 10th of December, 1841, the defendants in error recovered a judgment in the circuit court of Adams county, against the plaintiffs in error, for $>1448. The record shows that at the May term, 1842, a motion for a new trial was overruled, and a bill of exceptions taken. By the bill of exceptions it appears, that a few days after the rendition of the verdict, and during the same term of the court, the defendants below entered a motion on the docket for a new trial, on the ground of newly discovered evidence, and accompanied the motion by a petition, and the affidavits of the witnesses, which petition was sworn to by one of the defendants ; that notice of the motion was duly given to the counsel for the plaintiffs below, and that after the trial of the cause, and before the motion for a new trial was called for hearing, the judge who presided at the trial, interchanged his circuit with another judge, according to the provisions of the statute, who presided for the balance of the term, or at least until the motion for a new trial was called. But as he had not presided at the trial, he refused on that ground to hear and decide the motion, and ordered that it should be continued. At the May term, 1842, the judge, before whom the cause was tried had returned to his circuit, and the motion being again called in its order on the docket, he refused to hear and decide it on its merits, on the ground that it should have been determined at the previous term of the court, at which the trial had taken place, and accordingly he ordered that it should be overruled.

A preliminary objection is raised to the bill of exceptions on the ground that it is incompetent for a judge of the circuit court, by reciting in the bill of exceptions a fact which had transpired at a previous term, to make that fact a part of the record, when in the records of the previous term, such fact does not appear. Or, to present the question in a different form, that the judge, at May term, 1842, could not certify and make a part of the record facts which had transpired in 1841, before a different judge. The answer to this objection is obvious. A bill of exceptions is a judicial certificate of record, importing verity on its face. When, therefore, a circuit judge, by bill of exceptions, certifies to us a fact, we must take it as a fact. If it be in relation to something which did not transpire before him, then we must presume that he had proof of it. When the judge signed a bill of exceptions certifying to us that the de•fendants had made a motion at a previous term, accompanied by the affidavits, and that the judge refused to decide the motion because he had not presided at the trial, andón that ground continued it, we must suppose that he had evidence of the facts which he states; or I should rather say that we can indulge no supposition about it; it comes to us as a fact which requires ho presumption in its favor; and which admits of no evidence to question it. A circuit judge should never permit anything to be incorporated in a bill of exceptions, which did not actually transpire before him, or which is not fully proven, and we cannot presume a departure from duty. The counsel for the defendants in error has cited an authority which is decisive against him on this point. It is that “ matter of record is to be proved by the record itself.” 3 Tomlins, 300. Or to use another maxim, a record proves itself. This is conclusive, when it is considered that a bill of exceptions is as much a record as any other part of the proceedings; so we regard this objection as unavailing.

Before we can properly proceed to the merits of the application for a new trial, another question presents itself, which deserves some consideration. Indeed, this we presume, is the main question which inriuenced the mind of the court below in overruling the motion. It is this; can a motion for a new trial be continued from the term at which the verdict was rendered, until the next succeeding term I In the absence of fixed rules» of practice for the government of our courts, we must determine this question by the English practice. Motions for new trials ,are denominated special motions, and on the showing of the party making the motion, a rule nisi is usually granted, calling ■on the opposite party to show cause against the motion. A day is assigned for making and deciding these motions, but they are frequently permitted to stand over for the accommodation of parties. And if the party who obtains the rule is not ready to support his motion, he may move to enlarge the rule till a future day in the same term, or until the next term, and when so enlarged they are set fora peremptory call. 1 Tidd’s Practice, 501-505. This enlarging the rule is said to be very much a matter of coarse when it is the party’s own delay, but where it is not, there must be some evident necessity for it. This is a direct authority in support of such continuance, when it is ordered by the court. Where there has been no such order, the motion would expire with the term of course, lb. 502. The only difference between a motion here and under the English practice is, that in our courts the motion is for a rule absolute in the first instance, but that makes no difference as to the power of the court to enlarge the time for hearing the motion. Whilst we do not doubt the power of the court to continue such a motion from one term to another, yet it is an unsafe practice when the application depends upon the evidence given at the trial. In such cases it would be impossible that such a motion could be determined, if the judge who presided at the trial should have interchanged his circuit with another judge. But when the application depends exclusively upon affidavits, this difficulty is in a great measure obviated.

The motion in this case was made on the ground of newly discovered evidence, and although the judge may have overruled the motion under an impression that it could not be heard at that term, yet if on the merits the defendants are not entitled to a new trial, the judgment must be sustained. One of the defendants made an affidavit in support of the motion, in which he states that since the trial he has discovered new and import- , ant testimony, which was unknown to the defendants before the trial, although diligent inquiry and industrious efforts had been made to discover and produce the testimony on the trial, which efforts had utterly failed; and that it was not until a day or two before making the motion that he had discovered that such proof could be made. He also states in his affidavit that the witnesses will prove that the intestate of plaintiffs below, acknowledged in his lifetime the payment of nine hundred dollars on the note sued on, and that the witnesses are resident citizens of the counter of Adams, and that he could obtain their attendance at the next term of the court. The application is also accompanied by the affidavits of the witnesses fully establishing the acknowledgments made by the deceased of the payment of nine hundred dollars, as stated in defendants’ affidavit. These affidavits seem to be sufficient to bring the defendants within the rule established by this case of Hare v. Sproul, 2 Howard, 772. He states that the evidence has come to his knowledge since the trial; that it was not owing to the want of diligence that it was not sooner discovered, and that the verdict 'would probably be different. The same rule is also laid down by the authorities cited by the counsel for the plaintiffs in error, and the decision in Guyott v. Butts, in 4 Wendell, 303, is very much in point. On the whole, therefore, we think a new trial should be granted.

Mr. Justice Thacher, having been counsel for the plaintiffs in the court below, gave no opinion.  