By the Court.
McDonald J.
delivering the opinion.
[1.] The error assigned in this record is on the judgment of the Court below refusing a new trial on the motion of the plaintiff. This was an action of trover for negroes, and the plaintiff offered in evidence a special entry endorsed on an execution in favor of Albert W. Smith, of which the plaintiff is assignee, against Joseph Bush, under whom defendant claims title, signed by himself for the purpose of proving-title to the negroes sued for in himself. I know no rule of evidence on which this testimony can be admitted. The entry was manifestly the work of the plaintiff himself, Bush, the defendant, not participating therein or assenting thereto. At least, such participation or assent does not appear in the record. To admit it would seem to me to allow any holder of a Ji.fa., by his own entry to acquire the property of the defendant at his own will; or at least to manufacture evidence of a transfer of title for a consideration, which it might be difficult to rebut. Such special' entries are out of the usual course of business. To enter satisfaction of an execution is against the interest of the plaintiff or assignee, but if at the time of entering satisfaction, he can acquire property to treble the value of the debt by saying in the entry, that the sale of that property was the consideration for the entry, it is certainly to his interest to do it. The mind of my brother Banning, who presided with me in this case, [688]*688is not so well satisfied that the entry of satisfaction may not legally show the manner of satisfaction, and if necessary to be given in evidence, that the whole should not go together. I have already assigned my reasons of entertaining a contrary opinion.
[2.] The Court refused tojadmit, as evidence in rebuttal, the note, a copy of which is set forth in the second ground in the motion for a new trial. The presiding Judge considered it not rebutting testimony, which kind of evidence alone he said the plaintiff could give, at the stage of the case at which it was offered. But was it not rebutting evidence? The plaintiff had shown, or his witnesses had testified, that he had been in possession of the negroes a great many years. The defendant, on the contrary, introduced evidence tending to prove that Joseph Bush had always had the possession.
It was certainly in explanation of Bush’s possession and in rebuttal of his proof, to show; that his possession was on hire; and the note expressing on its face that it was for hire of negroes, was worth something as proof of that.
We think there is nothing in the ground taken, that the verdict was decidedly and strongly against the weight of evidence.
[3.] The last ground taken in the ’motion for a new trial is newly discovered evidence. The plaintiff claims to have discovered, since the trial, witnesses by whom he can impeach a material witness for the defendant. Perhaps a case may be conceived on which a new trial ought to be granted for the discovery of such evidence. But if there be such a cause, it must be where the party introducing the testimony to be impeached was guilty of a fraudulent contrivance to impose suddenly on the Court a witness, whose character the opposite party could, by no possible diligence, have impeached, and who gave false testimony. But in this case, the witness sought to be impeached, was known, his testimony was taken by commission, and the interrogatories propoun[689]*689ded to him, indicated the proof expected to be made by him. The plaintiff ought to have known that the defendant expected to make proof adverse to his interest and to have made preparation, if he knew the evidence expected to be made, would be, if made false, to counteract its effects, and the first thing that would suggest itself to a prompt mind, would be, that the false testimony could be given by none but a witness of worthless character and incredible, and that it was necessary to enquire into his character without delay. Nothing of this sort was done He risked the chances of a trial, and when a verdict was rendered against him, he set to work with great energy to get up grounds for a new trial, and was prepared, at the term of the Court at which the cause was tried, with evidence, submitted by affidavits to show that the character of the witness disentitled him to credit. There was gross negligence on his part before the trial, if he knew the evidence would be false if made.
There is even less pretense for a new trial on the ground that Ogg’s evidence was newly discovered. Ogg had lived with the plaintiff; the affidavit states that the negroes were in his possession at the time. Instead of writing to him to know what would he his testimony, he ought to have presumed it would be the truth, and to have made out interrogatories and forwarded them with a commission, at once to take his testimony, instead of writing to him. The plaintiff deposes that he did not know his address until.the reception of this letter. It seems that the letter written to him before the trial, was received by him, and the commission, perhaps, would have gone quite as well, and if sent a little sooner, might have been returned before the trial.
The evidence of this witness is cumulative merely, and, on that ground, is entitled to little consideration on a motion for a new trial.
We affirm the decision of the Court below on all the grounds taken in the motion for a new trial except the refu[690]*690sal to admit in evidence the note given by Joseph Bush for the hire of negroes, and on that ground must reverse his judgment refusing the new trial.
Judgment reversed.
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