
    Bogert and Kneeland against Executors of Saul Simons.
    Charleston,
    May, 1817.
    of^VemiTor which the defend-the papers*oí his ^°r>for n”° tna1'
    This was a motion for a new trial, on the ground of the discovery of evidence since the former trial, of the existence of which the party was A ^ not apprised at that time. The evidence consisted of letters, found among the papers of his testator.
    The ease was tried before Mr. Justice Grimké, in January Term, 1817.
    Verdict for the plaintiff.
   Nott, J.

delivered the opinion of the Court.

The ground taken for a new trial in this case has seldom been allowed by this Court, and always with great caution, and under peculiar circumstances. Where the investigation of a cause has led to the discovery of written evidence which could not have been known before, or where, from circumstances not within the control of the party, the testimony could not, with the utmost diligence, have been discovered, and where it appears important to the. merits of a cause, it may furnish a good ground for a new trial. But, in this instance, the evidence was among the papers of defendant’s testator, and, therefore, literally in his own possession. He might, with ordinary diligence, have had the benefit of it; if, indeed, it could have been of any service to him: but I am satisfied it could not have availed him any thing. I am further satis- . ° "ed, that ample justice, and more than justice, been done to the defendant. The Jury have not allowed the plaintiff’s interest, which, being deducted, has reduced the amount recovered by them to a sum less than the defendant acknowledges they are entitled to receive. In any view of the case the defendant is not entitled to a new trial. The motion, therefore, must be refused.

Thomas S. Grimke, for the motion.

King, contra.

The other Judges concurred.  