
    Sylvester Ploof v. Henry W. Putnam.
    May Term, 1910.
    Present: Rowell, C. J., Munson, Watson, Haselton, and Powers, JJ.
    Opinion filed May 30, 1910.
    
      New Trial — Newly Discovered Evidence — Due Diligence — Sufficiency of Affidavit.
    
    The statement, in an affidavit in support of a petition for a new trial on the ground of newly discovered evidence, that diligent search was made, is insufficient, for that is merely the opinion of the affiant, whereas the facts should be stated from which it can be judged whether there was due diligence.
    Petition for a new trial on the ground of newly discovered evidence, preferred to the Supreme Court for Chittenden County at its May Term, 1910, and then heard on the petition and supporting affidavits.
    
      Batchelder & Bates for the petitioner.
    
      Martin S. Vilas and Goioles & Moulton for the petitionee.
   Rowell, C. J.

Final judgment having gone against the defendant at a former term, the case now comes before us on his petition for a new trial on the ground of newly discovered evidence.

The only evidence presented, to show diligence on his part to discover the evidence relied upon before the trial below, is contained in the affidavit of Mr. Braisted, who was employed by the defendant to look up the evidence and prepare the ease for trial. He says that he spent several days in procuring and endeavoring to procure witnesses, and saw various and all persons of whom he could learn by diligent inquiry that might know the facts of the case, and under the direction of counsel obtained all the evidence, and made the best preparation, he could for the trial, but was unable to find any one who knew the things stated in the other affidavits attached to the petition, though he made diligent search and inquiry.

But this is not enough, as we have often held, for we can not act upon his opinion of what was diligence. He should have stated facts that would enable us to judge of the matter, and none are stated. Comoli v. State, 78 Vt. 423, 63 Atl. 186; Hemmenway v. Lincoln, 82 Vt. 465, 73 Atl. 1073.

Petition dismissed with costs.  