
    De Lima v. Glassell’s Administrator.
    Monday, November 6th, 1809.
    Equitable Relief — Judgment at Law — Discovery of New Evidence. — A discovery, since a trial at law, of new evidence, which, with ordinary diligence, the party might have known and obtained in time, is not a sufficient ground for a Court of Equity to grant a new trial.
    An action on the case was instituted in the District Court of Fredericksburgh, on behalf of De Lima, against Glassell, owner of a brig called the Janet, for failing to-deliver a cargo of corn, received on board the said vessel, on account of the plaintiff, in the month of May, 1793, to be carried from the river Rappahannock to Oporto, in Portugal. The capias issued, returnable to April Court, 1794. At August rules, in the same year, the defendant pleaded not guilty; and on the 6th of October, 1797, (no motion for a continuance being made,) a Jury was empanelled, and rendered a verdict in favour of the plaintiff, for 1,9001. 8s. 8d. damages. A motion for a new trial was made and overruled, and judgment entered according to the verdict.
    The defendant thereupon applied to the late Judge of the High Court of Chancery, for an injunction and new trial of the issue at law; setting forth in his bill, that the corn, which appeared sound and good when taken *on board, was discovered, when the vessel (which was perfectly dry and tight) arrived in Hampton Road, to be in a heated and ruinous condition; that in consequence thereof, the crew refused to proceed to sea with the cargo in that state, alleging it would destroy the vessel, and of course their lives; that John Griffith the captain, called on three experienced masters of vessels then in the port of Norfolk, to view and report the state of the cargo; and that they were of opinion, that he could not proceed on his voyage, without imminent danger of the loss of the vessel and crew; that, thereupon, the cargo was landed at Norfolk, and deposited in large airy warehouses hired for that purpose, in order to dry it as soon as possible; taking care, as far as could be, to separate the sound from the unsound, by which means about a thousand or twelve hundred bushels of sound corn were saved; the residue being totally or in part spoiled; that, as soon after the state of the cargo was discovered as the course of post would admit, the complainant wrote to William S. Stone, agent for De Dima, requesting him to come to Norfolk and direct what should be done; that the said Stone came down, but refused to have any thing to do or say to the cargo, although the complainant offered, if he thought proper, to reship the corn after it was dryed, and to proceed to the port designed ; that, upon his refusal to give any direction, the master of the brig caused the cargo to be sold at public auction, and deposited the amount of sales, being 4561. 15s. Id. in the hands of the complainant, who offered to pay it to the said William S. Stone, as agent for De Dima; but he refused to receive it, and brought the suit at law in the name of De Dima; that since the trial of the said suit, and not before, the complainant had been informed by sundry persons of credit, that a great part of the corn made in the year in which that-shipped on board the Janet was made, and especially the corn made in the '^neighbourhood from which that in question was shipped, was much injured by the early frost; and that the injury was in the heart of the grain, while, the surface remained fair, and apparently unhurt; that the corn in question was beaten out in rainy weather, in an open barn, or at least upwards of 6,000 bushels; and that, in the same year, corn which was apparently sound, was known to have rotted in the barns of the farmers.
    The injunction having been granted, William S. Stone, as agent for De Dima, answered the bill, stating, among other things, that he believed there was nothing peculiar in the nature of the corn; that probably the damage sustained proceeded from the delay of the master, (who was compelled by a criminal prosecution, to appear at the District Court of Rredericks-burgh,) and his negligence in suffering the corn to be taken on board in wet weather, and in not keeping the hatches closed and opened at proper periods to shelter it from the weather or expose it to the air; that at the trial at law, all parties were considered as prepared; and that, upon the motion for a new trial, all the suggestions in the bill, including the one that the corn was inherently bad, were repeated, though copiously dilated upon before the Jury.
    Oh the bill and answer, the Chancellor dissolved the injunction, whereupon the complainant filed a general replication, and commissions were awarded.
    A great number of depositions were taken on both sides; among which were those of four of the Jury, who swore there was no such evidence before them as that contained in certain depositions exhibited by the complainant; (shewing that the crop of corn made in 1792 was generally injured by the frost, and, when put in bulk, was heated and spoiled, though fair and sound in appearance ; and that a vessel loaded with damaged corn could not safely proceed to sea;) except that of a captain Dambert, who thought there would be no danger to a ^vessel going to sea with such a cargo, and said he had known an instance of a cargo of grain being heated at sea, and that no such consequence ensued. All the other evidence now introduced by the complainant appeared to have been before the Jury, except two depositions of John Griffith, which were not permitted to be read on the trial at law.
    The complainant having died, the suit was revived in the name of Anthony Buck, his administrator; and on the final hearing, the Court reinstated the injunction, and ordered a new trial at common law; from which order an appeal was taken.
    Williams and Warden, for the appellant, contended, 1. That, on the face of the bill, the complainant had full remedy at law, and no ground for coming into equity. No suggestion is made of fraud or surprise; and no good reason assigned for the failure to produce all the evidence in question at the trial. The bill, therefore, should have been dismissed, notwitnstauding there was no plea to the jurisdiction, 
    
    2. If the Court of Daw erroneously refused á new trial, the proper remedy was by bill of exceptions and appeal to this Court; not by injunction. A contrary doctrine would make a Court of Rquity a Court of Appeals to the Courts of Common Daw.
    Randolph. for the appellee, (besides arguing very fully on the merits,) relied on Pickett v. Morris, 2 Wash. 272, as shewing that the verdict and judgment were no obstacle to the relief he claimed. He contended, also, that, as a common carrier, Glassell had no relief at law, unless he could have proved that the injury to the corn proceeded from the act of God, or of the enemies of the Commonwealth; and that the new evidence offered could not have been admitted at law.
    *Botts, in reply.
    The cases of Turpin v. Thomas, 2 Hen. & Munf. 139, and Morris, Overton and others v. Ross, ibid. 408, have settled all the points in this cause, which is not in the least like that of Pickett v. Morris. The new evidence was in fact of no consequence; for this particular corn is proved to have been good when delivered, and to have been injured by the neglect of the captain ; and the proof on the other side is only that corn in general that year was bad. But even if the evidence was important, it did not change the question, but was merely additional testimony as to points which had been before the Jury. A Court of Equity will not grant a bill of review to its own decree, on additional evidence to the same facts ; for, if this were not the case, bills of review would be endless. A fortiori then, it should not set aside a judgment at Common Haw on such grounds; for the Court of Haw which heard all the evidence originally introduced, was more competent to decide as to the effect of the original matter.
    The fact that the corn made in 1792 was generally injured, was a circumstance of public notoriety, and- might have been known to the complainant before the verdict. If he neglected to make the proper inquiry, it was his own fault, and shewed a want even of ordinary diligence.
    Mr. Randolph’s argument that his client could not have had the benefit of this evidence at common law, proves too much; for if it would have been rejected on that ground at the first trial, how is he to avail himself of it on the second? But is it not a good defence both in law and equity, that the plaintiff’s own default occasioned the injury?
    On the merits, however, the case is clearly against him; it being fully proved, that the damage arose from the captain’s neglect and delay, for which the defendant was responsible.
    *Eriday, November 17th, the JUDGES EHEMING and ROANE (JUDGE TUCKER not sitting in the cause) pronounced their opinions.
    
      
      Judgments — Equitable Relief. — On this question the principal case is cited in foot-note to Terrell v. Dick, 1 Call 546; footnote to Donally v. Ginatt, 5 Leigh 359; West v. Logwood, 6 Munf. 498, 499; Fenwick v. McMurdo, 2 Munf. 253; Slack v. Wood, 9 Gratt. 43. See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Pollard v. Patterson. 3 Hen. & Munf. 67.
    
    
      
       See 1 Hen. & Munf. 180. Randolph v. Randolph’s Executors. — Note In Original Edition.
    
   JUDGE ROANE.

The grounds on which the new trial was awarded by the Chancellor in this case, were, or might have been, submitted to the Jury in the trial at law. It is stated by the answer of Stone, that they were not only submitted and copiously dilated on to the Jury, but also to the Court of Haw, on the motion for a new trial, which was refused. It is true, four of the Jurors seem to say, that evidence on those points was not submitted at the trial; but supposing such to have been the fact, the appel-lee ought still to have assigned some reason for not having exhibited his evidence to the Jury; such as that these facts came to his knowledge after the trial, or the like. Nothing of this kind being shewn, as the ground of the application to the Court of Equity; this is, therefore, the naked cáse of moving for a new trial in equity, on grounds which, with ordinary’ diligence, the party might have availed himself of, on the trial at law ; and, therefore, I am for reversing the decree, and dissolving the injunction.

JUDGE EHEMING.

The object of the bill in this case was to obtain a new trial, where the controversy was purely of a legal nature, and where a motion for a new trial was overruled by the unanimous opinion of the Court before which the issue was tried, and which heard the whole evidence adduced on both sides. It is a general principle, that a Court of Equity will not interfere in such a case, on the ground that the verdict and judgment at law was erroneous, where neither fraud nor surprise are suggested, nor any supervenient circumstances had arisen. In the case before us, the suit at law in the District Court of Eredericksburgh was at issue three years and two months before the cause was tried; which gave the parties full time to collect and produce their testimony; *all of which, so far as it respected the state of the vessel and cargo, whilst in Hampton Road, and at Norfolk, the opinions of the merchants and sea captains as to the danger, and probable fatal consequences that might have ensued, had the brig, with the damaged cargo, proceeded on her voyage, was fairly before the Jury, composed of respectable characters (some of the merchants) in the town of Ereder-icksburgh, where the contracting parties resided. It is a general principle, that the discovery of other evidence is not a good ground for a new trial; which forcibly applies in the case before us, as such an uncommon length of time elapsed between the joining- of the issue and the trial of the cause. Perhaps, in some extraordinary cases, the interference of a Court of Equity on that ground, might be admitted; but in the present case, the only pretended discovery of new evidence was, that in the year 1792, the crops of corn In many parts of the country were injured by an early frost, and the testimony of some cases of vessels being distressed at sea from having damaged cargoes of grain on board. All this testimony was, or might have been, before the Jury; and it appears from the deposition of Baylor Hill, that in the cargo on board the Janet, there was a layer of sound, and a layer of damaged corn, alternately; which probably arose from the latter having been received on board in wet or damp weather, (of which it is in evidence there was much whilst the vessel was loading,) and not from any original defect in the corn; which Spiller, the manager of Mrs. Carter’s estate, proved to have been quite sound; and both captain and mate declared it was the best they had ever seen. On these grounds, I concur in the opinion, that the decree awarding a new trial of the action at law, be reversed, and the bill dismissed with costs.  