Hollingsworth v. Napier , 3 Cai. Cas. 182 ( 1805 )

Per curiam, delivered by

Spencer J.

The court are applied to for a new trial in this cause, on the facts stated in the case, and on discovery of new evidence. The plaintiff derives his title to the goods in controversy under Kin-■worthy, and the questions are, whether his fraud infects the plaintiff’s title ? whether possession followed the sale, so as to destroy the defendant’s right to stop the goods in transitu ? and whether the case is free from the operation of the statute of frauds ?

The question of fraud was fairly submitted to the jury* TMdr verdict shews that they believed the plaintiff, from the evidence before them, was not a party in Kinworthy’s ffaU(j on defendant, and I cannot perceive any reasons for questioning the conclusions drawn by the jury,' Fraud. *s oc^ous’ anc^ never to be presumed. The Circumstances set up, on.' which it is to be founded, are too light and evanescent. On this point, therefore, the defendant’s applir. cation fails.- '

The plaintiff having, as it must now be intended, fairly - gotten possesssion of the order for the cotton, received a delivery of it, and paid the storage. This acquiring of possession took away the defendant’s right to stop in transitu. The order itself is a delivery, so as to prevent the operation of the statute. Searle v. Keeves, 2 Esp. Rep. 598. But again, the sale is wholly free from that objection, by the delivery of possession under it. With respect to the facts upon which the defendant relies for a new-trial, on the discovery of evidence, it is to be observed,-) that the former was had in December last. It would b too loose to set aside the.yerdict on the mere expectation of a party’s being better prepared. There has been abundant time for the defendant to lay before us the facts in the knowledge of his witnesses. This ought to be done on all applications for new trials on discovered testimony ; or, if omitted, good rejason ought to be given for the omission. To listen to the application on this ground, would be to grant new trials wherever the party was dissatisfied with the verdict. The facts ought to be strong ones to induce the court to grant a new trial on the discovery of evidence, and the case should be free from laches. In the present instance, the defendant is chargeable with delay, anda the facts that he expects to prove, for aught that appears, rest in his own credulity.

If it should be admitted that Hyde never kept an account with the banks, it does not follow that the testimony given on the trial, is untrue. The witnesses did not say that Hyde drew the check, but that he loaned one. This 'might be, and it is to be presumed, was a check drawn by some other person. In my opinion, the defendant takes nothing by his' motion, and such is the judgment of the court