The Hawaiian gazette., 1888-10-16

1 JUDD u NJ OOIL4.
r ERTUN AND DOLE, u.
Exceptions from decision of Dole, j,
| Opinion of the Court by Preston, j.
This is an action of assumpslt tc
recover the sum of $1,349 for cattle
sold and delivered by the plaintiffs
to the defendant. and was tried at
the last April Term before Mr.. JUS
tice Dole and a foreign jury, when a
verdict was found for the plaintiffs.
The defence at the trial was that
the cattle were purchased from A. F.
Cooke as President of the Pacific
Navigation Company, against which
Company, now insolvent, the de-
PENDANT had right of set of, but no
such set off was pleaded, as the de-
PENDANT denied that either Cooke or
the Company was the agent of the
plaintiffs.
The defendant moved for new
trial on the following grounds
LIST. That the verdict was contrary
to the law and the evidence.
I'd. That the Court upon the trial
declined to instruct the jury, as re-
quested by counsel for defendant.
Sd. That the Court erred in in
structing the jury in the manner in
which it did instruct t9em, as per
written memoranda on file
4th. That the defendant was taken
by surprise by the evidence of A. F.
Cooke on behalf of the plaintiffs, to
the effect that he, Cooke, was the
agent of the plaintiffs at the time of
the sale and purchase of the cattle
on which the suit was instituted.
9Th. That since the said trial the
defendant has discovered evidence
previously unknown to him, of the
fact that the Pacific Navigation Com
pany, acting through A. F. Cooke,
its President, was in fact the pur
chaser from the plaintiffs of the cat
tie for the recovery of the price of
which the action was brought.
An affidavit by j. F. Colburn in
support of the last ground was filed,
and is to the effect that A. F. Cooke |
had told the deponent that he Cooke |
purchased the cattle from the plain
tiffs, and that he had got the cattle
off his hands by selling them to the
defendant.
The motion was overruled and ex
captions were taken.
The following is the decision of
Mr.. Justice Dole:
Upon the points raised by plain
tiff's counsel, that defendants excep-
tons had not been properly noted
upon the record, | find that the ex-
ception to the verdict and the notice
for new trial are properly entered;
also the defendants exception to the
refusal of the Court to charge the
jury as requested by defendants
counsel in instructions 1, 2, 3, and
5, the exceptions being noted by the
Clerk and the instructions refused
being on file. In regard to the third
ground of the motion, i. e., that the
Court erred in instructing in the {
manner in which it did, there being
40 record of any exception to the
general charge to the jury, 1 find q
hat such exception cannot now be
The foregoing exceptions, which a
lave been regularly made and placed t
N record, are not in my opinion suf- a
Icient ground for a new trial, not q
Iaving had occasion to modify nv n
lew of the law as given at the trial
The fourth ground of the motion, Il
e., that Mr.. Cookies testimony in n
egard to the agency was surprise q,
the defendant does not appear to d
lie well founded, inasmuch as the n
resentation of bills by Cooke or the "
'acifc Navigation Company to the Of
efendant for these identical cattle, cl
the name of the plaintiffs, fol- f,
WED by the beginning of the suit M
y the plaintiffs, must have sug-
ested to defendant the line of &C vi
on relied on by plaintiffs. hi
The fifth ground of the motion for hf
new trial is newly discovered evil ar
ence the afidavits show this to be of
7idence of declarations of the wit ch
ess A. F. Cooke inconsistent with ce
s testimony at the trial. The es
,neral rule of law is that a new hi
ial will not be granted where the bv
'wly discovered evidence would s6
erely impeach or discredit a wit AN
'ss who testified at the trial. There
g exceptions to this principle which me
ight justify a new trial on account mf
this evidence if it appeared that dr.,
r. Cookies testimony was decisive Sc,
the issue; but the testimony of
~ and Waterhouse tend to prove as
agency, and it does not appear lie,
ely that the impeachment of Die
'oke's testimony would change the cul
suit of the action on new trial. bet
There is a still stronger reason AMI
ainst the allowance of a new trial /
the ground OF this newly-dis- as
7ered evidence, and that is the tiol
parent want of diligence. The to {
fendant desires an opportunity of VIII
reducing the newly discovered Sd
dence to rebut the plaintiffs evi sen
nee of the existence of an agency; Oct
it appears from his conduct of
} case that he did not rely upon Rec
proving the agency, but in show Res s.
! that he was ignorant of it, and
Il IL 4