
    Drayton against Thompson.
    DEBT on bond, is to be granted, for discovery of new evidence after trial, which mi^hl, by due diligence, have been procured at the trial; am! the more especially too, as the plaintiff may discontinue his suit as soon as lie discovers a defect of evidence, which it is probable^ might be supplied at a future dav,
    DEBT on bond, assigned to Gabel and Corre. A discount pleaded, viz. 4,000lb. ginseng, at 2s. 6d. per lb. On the trial, the jury allowed this discount out of the bond, and gave a verdict for the balance.
    
      Ford, for plaintiff,
    afterwards moved for a new trial, on the ground that he had since discovered evidence, which would on the trial, (if he had known of it,) have disproved all the plaintiff’s discount, except about 99/. sterling ; and that at the trial, he was surprised by a piece of evidence he was not prepared for, to wit, a new agreement concerning the ginseng; by which the defendant had agreed that the plaintiff should ship the ginseng to Europe, and sell it for his account, and that the nett proceeds should be credited on the bond. The plaintiff’s affidavit was also produced, stating this new agreement, and the account sales of this ginseng. Also* that he had given the defendant notice of it, and that he had the account sales in his possession, and could have produced it on the trial, had he known of it, or had been called upon for that purpose.
    It also stated, that the bond in question, had been negotiated by the plaintiff, to Mr. Bourdeaux, and by Boiir-deaux again, over to Messrs. Gabel and Corre. who brought forward the suit in the name of Drayton, the obligee of the bond. It did not appear that Gabel and Corre ever gave Drayton any notice of the discount, which was pleaded j nor did be even know when the trial came onthough Drayton himself, stated in a supplementary affidavit, that Bourdeaux once informed him, that the defendant, Thompson, had called on him, and told him he had a discount against the bond, and that he, Drayton, told Bourdeaux it was very right, but that such discount would not exceed. 100/. or thereabouts.
    Harper, for the defendant,
    insisted, that the plaintiff ought to have been prepared with his evidence at the trial, without any special notice; that Us pendens, was notice to all the world.
    The case was argued before Waties and Bay, Justices.
   Waties, J.

The discovery of new evidence has been, rarely allowed as a ground for a new trial — and never, where the party might by using due diligence, have procured it before. This appears to be the present case. It is admitted on both sides, that Dayton is only the nominal plaintiff, except for the purpose of giving the defendant the benefit of any equity against the bond : and that Gabel and Corre, who were the assignees and owners of it at the time of the suit, are to be considered as the real plaintiffs.

The single question then is, whether Gabel and Corre might have procured at the trial the evidence they have since discovered. It is stated, that it was then in the knowledge and possession of Drayton, who would have produced it if he had been applied to ; but Gabel and Corre, although apprised of the discount filed, gave no notice of it to him, or made any inquiry whether it was just or not, but suffered the defendant to proceed, ex parte, to substantiate it. Gabel and Corre are therefore guilty of a laches ; for it appears to me to be incumbent on the assignee of a bond, which is in any manner impeached, to give notice to the obligee, that he may come in and defend it; in the same manner as it is incumbent on the grantee of land, to vouch the grantor to defend the title, where that is brought in question» And if the assignee neglects to do this, the obligee, like the grantor of land who has not been ’vouched, is not bound by the verdict, but may controvert it in an action to recover, for any deficiency found. If it were otherwise, and if the assignee was not obliged to give notice, it would be imposing an intolerable hardship on the obligee j it would require him to be always on the Watch, and if he should have assigned a number of bonds, (which is the case of many,) it would make it necessary for him to be constantly attending at every court in the state, for fear of discounts, which would be an impossible thing. It is therefore the duty of an assignee to give him notice of any discount that may be set up ; and if he fails to do this, and the discount is allowed, the assignee takes upon himself the risk of its being legal or not. As the assignees here have neglected to give the obligee notice, and it was owing to this that they had not at the trial, the evidence in his possession, 1 am of opinion that there is no ground for a new trial.

Assignee of a bond is bound to give notice to the obligee of any dis» count of de-fence set up against it by the obligor, otherwise he takes upon, himself the consequences.

Bay, J.

of the same opinions and the more so because the plaintiffs might have discontinued their suit as soon as they were surprised at this kind of testimony, and relied on the probability of getting better proof at another court.  