#### Ebenezer Niles *versus*Charles Brackett.

Where a witness was examined, who was known to the party producing him to be interested, and this circumstance was not known to the other party at the time of the trial, a new trial was granted.

Assumpsit on the warranty of a horse, which died soon after it was purchased. The question, at the trial before *Parker,*C. J., was, *341whether the disease of which the horse died existed before the sale, or was acquired afterwards; and the Chief Justice stated that the fact was rendered very doubtful by the testimony. One *Richardson was offered as*a witness by the defendant, and testified in' the cause; which being so nicely balanced, the Chief Justice observed, his testimony was undoubtedly material.

No objection was made when he was offered ; but after the trial it appeared that he was one of the defendant’s bail in this suit, which fact was not known to the plaintiff or his counsel, until after the trial. On this ground a motion was made by the plaintiff for a new trial, a verdict having been obtained by the defend ant.

* & *D. Parlcer,*for the defendant,

contended that the motion came too late, and he cited the case of *Turner & Al.*vs. *Pearte,*(1) that the objection should have been taken at the trial. The plaintiff had many means of coming at the knowledge that the witness was bail in the action. It will be establishing a dangerous precedent, to sustain this motion.

*Davis,*Solicitor-General, for the plaintiff.

The case of *'Turner & Al.*vs. *Pearte*is a solitary one, and, besides, is not like the present. In that case, there was no satisfactory evidence that the incompetency of the witnesses was not known to the party objecting to them, at the time of the trial. In the case of the *Commonwealth*vs. *Waite,**(2)***the motion was on the same ground with the present, and, although it did not obtain, because the incompetence of the witness was not well made out, the point is there taken for granted that, where the fact is discovered after the trial, it is good ground for setting aside the verdict. So it was also in the cases of *The King*vs. *Teal*& *Al.,*(3) and *Sutton*vs. *Mitchell.*(4) The in competency of the witness must have been known to the defendant before he was offered for examination. They must have executed the bail bond together.

This motion stands on the same grounds with that which occurs in every day’s practice, *viz.,*a motion for a new trial on account of evidence discovered after the trial. (5)

*Parlcer,*in reply.

The defendant might have known that the witness was his bail; he had nevertheless a right to offer him ; and if the plaintiff had taken the objection, the bail might have surrendered the defendant, by which the ground of the objection would have been removed. The plaintiff must have known that bail was *342taken in the action; and a very little inquiry would have shown him who they were.

(1)

 1 *D. & E.*717.

(2)

5 *Mass. Rep.*261.

(3)

 11 *East,*311.

(4)

 1 *D. & E.*18.

(5)

3 *Johns.*255. — 3 *Burr.*1771. — 3 *Caines,*182. — 7 *Johns.*306.— 8 *Johns.*4899 *Johns.*264.

*Per Curiam.*

A new trial is granted; it appearing that the interest of the witness was not known to the plaintiff * until after the trial, and that it was known to the defendant,'who produced him. In a cause so nearly oalanced as this appears to have been, a little evidence is sufficient tu turn the scale, (a)

(a)

**An objection to the competency of witnesses, discovered after the trial, is not of itself a sufficient ground for a new trial, although it may have some weight with the court where the party applying appears to have merits.— *Turner*vs. Pearte, 1 *D. & E.*717. —2 Arch. *C. P 264.*