#### Jackson, *ex dem.*Rowley and Smith, *against*Kinney.

NEW YORK,

May, 1817.

In general wiñ on Uiround of newiy-discovermerely ‘L ?mmroy ofV'“¡t per trial16 But cern?D|!he utie where the identity of the^riginai pa-trUiIiti0may ”bl thent6defendant of impeaching the 6hllprincfpai tda?ntift;f°espUe6 has been a long time possession,

THIS was an action of ejectment, brought to recover lot No. ’n die town °f Homer, in the county of *Courtlandt,*and was tried before his honour the Chief Justice, at the *Courtlandt*Circuit, in 1816.

The plaintiff’s lessors claimed under a patent granted in 1791, to one *William Rullins,*and produced two witnesses, *Swartwout*and *S^erzbood,*to show that *William Rullins,*and *William*ley, of whom one of the lessors of the plaintiff was the son and 1 heir, were the same person, and that he had served as a private during the revolutionary war. At the trial, a verdict was found f°r plaintiff, which the defendant now moved to set aside, on the ground of newly-discovered evidence, and of surprise at the trial. The affidavits which were read on the part of the defendant, were calculated to impeach the testimony of *wood,*the principal witness fon the plaintiff, by showing that he . , ,r. , , . . . . , . , had made various declarations inconsistent with what he swore to at the trial; that he was an habitual drunkard, and a person *187unworthy of credit. Affidavits were read on the part of the plaintiff to support the character of *Sherwood;*and, to repel the allegation of surprise, the affidavit of one *Smith,*was read, which stated that the defendant and *Sherwood*did not reside more than six miles from one another; that the defendant attended the court at which the cause was tried, and the deponent verily believed, well understood that the testimony of Sher*wood*was relied upon by the plaintiff. It appeared that the defendant had been in possession of the lot in question about nineteen or twenty years, and had made considerable improve^ meats.

*Richardson,*for the defendant.

*T. Sedgwick,*contra.

*Per*Curiam.

This is an application for a new trial, on the ground of surprise and newly-discovered evidence. The newly-discovered evidence is for the purpose of impeaching the character of one of the witnesses examined on the part of the plaintiff. As a general rule, we have refused granting new trials on this ground. We have, however, repeatedly, in trials concerning the military lots, been more liberal in granting new trials, owing to the obscurity and multifarious frauds attendant upon those titles ; and especially, when the question turns upon the identity of the soldier from whom the title is claimed to be derived. Although the character of *Sherwood,*the witness, seems to be rendered infamous, in the extreme, by the affidavits furnished on the part of the defendant, yet, it is supported very much by affidavits on the other side. This is a question, however, that can be much more satisfactorily decided in open court, when the witnesses can be seen by the jury, and their intelligence and respectability judged of¿ and, besides, it is a question which properly belongs to the jury. The ground of surprise is removed by the affidavit of *Smith.*Upon the whole, considering the length of the defendant’s possession, upwards of nineteen years, and that the soldier is represented as having two names, and as considerable doubt rests upon the plaintiff’s claim, we are inclined to think the ends of justice will be best *188answered by sending the»cause back to a new trial, on payment of costs.

New trial granted, (a)

(a)

 Vide *Jackson, ex. dem. Wolcott and others,*v. *Crosby,*12 *Johns. Rep.*354.