
    Frederick F. Davis, Pl’ff in Error. vs. Augustus G. Ruggles, Def’t in Error.
    Surprise, such as arises from a want of preparation of this proper ovidence to establish tho execution of a deed, is not a sufficient ground on which the Judge, who tried the cause, should grant a new trial; and where an exception is taken to tho decision of "a Judge, overruling a motion upon ail application for a now trial, upon that ground, it will not be reversed on Error, in this Court.
    A party is bound to know what evidence is necessary to be produced by him, in order to shew the proper execution of a deed or other paper, which forms tho basis of his action or defence. Ignorance of the requisite proof, or negligencia in procuring it to be introduced, are not grounds upon which this Court will dot, to give relief whore the cause has been tried and a verdict has passed against him, and tho Judge before whom tlic cause was tried has overruled a motion for a now trial. But this Court might not disturb tlié ruling of tho Judge, who in the exáfeise of his discretion, should have granted a new trial Upon theb’asis of suoh dofect of evidence', provided, in that he had seemingly exercised a sound discretion.
    Error to the Circuit Court of Fond do Lac County.
    This was an action o'f covenant brought by the defendant in error against the plaintiff in error, on a sealed indenture, executed by ihe plaintiff in error with his wife, for.the conveyance to the defendant in error of certain lands, situated in the State of Wisconsin; and in such indenture covenanted that he was well seized of the premises by an absolute title.
    To the declaration the plaintiff in error pleaded that the alleged indenture v>&s not his deed; and gave notice fhat he.would prove, on the tpia], that aftpr. the cxecutipp, of the covenant, one Gage executed to him a deed, con-, yeying the fee simple of the premises described in the. covenant; and also tha.t at the time of the execution of the said covenant by the defendant in eri;or, he was well seized of the premises, assumed to be conveyed.
    On the trial the defendant in error produced and proved the execution of the covenant. The plaintiff in error offered in defence, a deed of a part of the premises specified in the covenant, from one Joseph Gage to Stephen Gfage, and then proposed to offer, in evidence, a deed from t,he said Stephen Gage to himself, which deed was claimed to have been, executed prior to the execution of the deed under which the defendant in .error claimed to have been seized. The counsel for the defendant in error objected to the admission of this deed in evidence, on the ground that the acknowledgment of the deed, so offered in evidence, purported to hpve been taken befpre a Justice of the Peace in the State of Ohio; and that it <jid not appear that such, an officer was authorized by the laws of that State to take sii.ch, acknowledgment. Upon t.liis objection the Circuit Judge rejected, the evidence, and t,he counsel for the defendant in error excepted.'
    The counsel for the plaintiff in error then, offered in pvidence the record, of the saprp deed from Joseph Gpge to Stephen Gage, recorded in the office for the recording pf deeds, in the County of Fond du Lap, where the land, was situated. The counsel for the defendant in error pbjccted; and the Judge rejected the evidence, and the counsel for the defendant in error excepted. The plain-, tiff also introduced evidence in mitigation of damages.. The Jury found for the defendant in error, damages, tp, the amount of $81%00.
    
      The plaintiff in error made a motion for a new trial upon an affidavit, which is as follows, to wit:
    Personally came Frederick F. Davis, the above named defendant, who after being duly sworn, doth-depose and say that he verily believes that he has a just and legal defence to the plaintiff’s action in this case, and that by the verdict of the jury great injustice has been done him. That he intended and expected to give in evidence a certain deed from Joseph Gage to Stephen Gage, bearing date the 18th day of November, 1848, and recorded in the Register’s office in and for said County of Fond du Lac, the 29th day of November, 1848, VoL G, page 473, for the west half of the south-east quarter of section 35; containing 80 acres of land, and being the Same for which recovery is sought in damages in this suit, in mitigation of damages, which deed perfected the title to said 80 acres of land in deponent, and is the same offered in evidence on the trial' of the case, and which if given in ¿vidence, in the opinion and belief of deponent, would Have.limited the verdict of the Jury to nominal damages •only. That the rejection of said deed by the Court when offered in evidence, took the .deponent-by surprise, and he was surprised, as up till that moment he confidently believed that said deed was of itself competent testimony, and he had no intimation up to that time, from any source;, but that said deed would be competent testimony for the purpose aforesaid. Deponent further saith that he was necessarily and unexpectedly absent and out of the State previous to the sitting of this Court three weeks or there abbuts, and only returned on Monday morning, on which the Court commenced their sitting, and from that up tilt the time the case was called ori for trial; o‘#ing to his offi-. cial duties, he had neither time to prepare his case,- or to consult with his counsel.
    Sworn and subscribed this 25th day of October.
    The Judge, on the hearing, overruled the motion for a new-trial, and thereupon the plaintiff in error excepted; and the cause came -to this Court upon such exception.
    Graham & Davis, counsel for the plaintiff in error, made and argued the following points.
    1. The Court erred in rejecting the deed from Joseph Gage to Stephen Gage, dated 13th of November, 1848, when offered in evidence by the defendant, in mitigation of damages.
    2. The Court erred in rejecting the record of the deed from Joseph Gage to Stephen Gage, dated 13th of November, 1848, and recorded in the Register’s office in and for the County of Fond du Lac, the 29th day of November, 1848, when offered in evidence by the defendant in mitigation of damages.
    3. The Court erred in refusing to set aside the verdict of the Jury, and to grant a new trial on the motion of the defendant, upon the ground of surprise,
    4. The defendant assigns common errors.
    
      M. C. Eaton, Counsel for the Defendant in Error*
    made and argued the following points:
    1. The deed from Joseph Gage to Stephen Gage as well as the record thereof, was properly rejected, when offered in evidence, as there was no pioofthatithad been executed and acknowledged according to the laws of the State of Ohio. Rev. Stat. 1839, 179-180,
    2. Surprise in matters of law is not groüná for' grant» in,g a new trial. 4, Wend. Rep, 277.
    
      3. Th^. Court wd-i not.Relieve a,party frotp tfie conse^,. quences,of mere ignoran.ee, inadvertency. or neglect by. granting, a new trial. Graham on:Jfeio-.Trials? 187, et seq-. Ibid, 198,_ et seq., and cases cited. And if the application, for a new trial be on the ground of,surprise, the surprise must.be such that care and prudence could not provide» agains.t. Grail, on Jféw Trials, 174, ep seq. and.qqses cit^ ed. . '
    4. The affidavit fo^a new trial is clearly insufficient;.^ that it., does not show how the deed frqm Joseph, Gage to Stephen Gage perfects the title to the land ^.controversy in the defendant, and does not show that qpon a. new trial the defendant coyld make out a defen.ee to the action.
   Bij.,the Courtr

Whitox,. J.

.This was an action of ‘Covenant, and, the breach assigned in the plaintiff’s declaration, was.on the covenant of seizin, contained in a deed purporting to convey to the defendant in error — the plaintiff below — a. quantity of land., The plea was non est factum,, accompanied with a notice that the defendant would prove on the trial,,, that subsequent to the making and delivery of the deed coptaming the covenant,alledg-e'd to have been broken, one Joseph, (-fage, made,, execut*-ed and, delivered to the defendant a, certain dped conveying to the defendant the fee simple Jo the premises, where-, of the plaintiff aljpdges th° defendant was not lawfully siezed at the- timp of making the covenant in his declaration set forth, &e..

Npon these plpadings the parties went to trial, and after the plaintiff hqd made out his case, the defendant of-iierqd in evidence,, ip mitigation, of damage^, adepd from» Joseph Gage to Stephen Gage, dated the 13th day of November, 1848, of 80 acres of land, and proposed to introduce in connection therewith, a deed from the said Stephen Gage to himself,- executed-before the deed to the plaintiff. Tie dee-d from Joseph Gage to Stephen Gago purported to have been executed in the State of Ohio, and acknowledged.before a Justice of-the Peace of that State. Tq the admission of this -deed in evidence, the plaintiff objected, on the ground that it.did- not appear to have been acknowledged, before a competent, officer.— There being no proof before the Court that, Justices of the Peace in Ohio had.authority to take the acknowledgement of deeds, the Court .sustained.the objection, and rejected the evidence. The.defendant then offered.the record.of the.deed in evidence, which was. also rejected by the Court After tire introduction of ■ evidence on. the part of the defendant, the cause was submitted to the ju-iiy, who found a verdict for the plaintiff,- and-assessed his damages at the sum of $316. After the verdict was rendered, the defendant moved for a new trial, and in support of the motion, submitted-the following affidavit—

“Personally came Frederick F. Davis, the above named defendant, who after being sworn, doth depose and say, that he verily believes that he has a just and legal defence to the plaintiff’s action in this case, and that by the verdict of the jury, great injustice has been done to him; that he intended.andexpected to give in evidence, a certain deed from Joseph Gage to Stephen ¿Gage, bearing date the 13,th day of November 1848, and recorded in the Register’s office in and for said County of Fond du. Lac, the 28th day of November 1848, vol. G page 473, for the west half of tjie south-east quarter, of section 35, contain-'. ihg 80 acres of lánd, and being the sdhne fof. which re¿ covery is sought, in damages, in this suit, in mitigation of damages, which deed perfected the title to sáid 80 acre! of land, in deponéht; and i§ the same 'offered in evidence in the trial of the case, and which if giveii in evidence would in thé dpidion add belief of the deponent, have limited the, verdict óf the jury to noníinál damages only. That the rejection of said de'ed by the Court, when offered in evidence, took the deponent by surprise-, and he was surprised', as up till that nibhieht he confidently believed that said deed was of itself, competent testimony, and he had no intimation up till that time, from any source, but that sáid deed would be competent testimony for the purpose aforesaid. Deponent further saith that he was necessarily and unexpectedly absent and out of the State, previous to the sitting of this Court, three i^e'eks, or thereabouts; and only returned on the Monday morning on which this Court commenced their sittings from that time, up till the Case was called on for trial owing to hiá Official duties!; he had neither time to prepare his case, or to consult with his counsel.” The Court overruled the motion, and rendered judgment upon the verdict. To reverse this judgment, this writ of error was sued out.

There can be no doubt that the ruling of the Judge id rejecting the deed, offered in evidence, was correct. The’ Statute in force at the time when the case was tried, is conclusive, — Stat. Wis. Ter., page 179, 180. The defendant should have been prepared to prove that the deed he offered in evidence, had been acknowledged or proved, as the Statute above referred to prescribes, and in order to do this; he should have .shown, that by the law bf Ohio, the officer before whom the deed purported to be acknowledged, was authorized to take the acknowledgment. The second section of an act of the Legislature of the late Territory of Wisconsin, passed March 11th, 1848$ and cited in the argument for the plaintiff in error, ’Which provides that deeds which had been executed with-but the territory of land lying within it, and had been 'acknowledged and recorded, should be taken to be executed and acknowledged according to the laws of the Territory or State where the acknowledgment was taken, and making the acknowledgment prima facie evidence that the person before whom it was taken, was duly authorized to take the acknowledgment, does not apply to this case, ás it relates only to those instruments which hdd been previously acknowledged and recorded. The next question, and the principal one in the case, is whether the Judge erred in not granting á new trial. Where no error has been committed in the trial, this question depends in some degree upon the discretion of the Court before whom the motion is made, but the Judge may so err in the exercise of his discretion, as to make a reversal of the jtidgment proper. Is this such a case 1 The 'Affidavit of the plaintiff in error alleges surprise as the principal ground upon which he bases his application, hnd the surprise consists in the ruling of the Judge, rejecting the deed which he offered in evidence; This is hot surprise. The pláintiff in error, went to trial without being prepared to shoW what the Statute required him to prove, in order tó Make the deed which he offered in evidence proper tes’tiMouy to go to the Jury. This is no ’cause for granting 'á new trial. Jackson, ex dem., Horton and others vs. Roe. 9th John. R. 77. The other matters stated in the affidavit as reasons for granting a new trial are clearly insufficient. The plaintiff in error does not appear to have made any effort to obtain the testimony necessary to make the deed evidence, nor does it appear but that with reasonable diligence it- might have been procured.

Judgment affirmed.  