Cornish, J.
Action to recover three hundred dollars, the purchase price of a pair of horses, the trade having been rescinded by the plaintiff because of breach of warranty by defendant. The verdict was for the plaintiff. The defendant filed two motions for a new trial; one on the ground that the verdict was against the evidence and the other based on newly discovered evidence.
The alleged warranty, which was oral, did not relate to the soundness of the horses, but to their willingness to work, the representation being that "they were good horses, all right, and would work anywhere.” The defendant denied both the warranty and the breach. Was there a warranty ? The testimony on this point is necessarily meagre. The plaintiff affirmed it. The defendant denied it. The only testimony outside their respective statements is that of one Head who corroborates the plaintiff to some extent. The jury believed the plaintiff and we think they were justified. The plaintiff bought the horses for working purposes solely, and as there was no representation as to their soundness it is hardly probable that he would have paid the liberal sum of three hundred dollars without some satisfying representation and assurance as to their ability and [80]*80willingness to work, and without even making inquiry as to the fact as the defendant claims. The jury did not err in accepting the plaintiff’s version.
As to the breach of the warranty, the evidence was more voluminous. Three witnesses besides the plaintiff testified to the balkiness of one horse immediately after the plaintiff brought the team home. The defendant met this with seven witnesses besides himself who testified to the work the horses had done while owned by the defendant and the absence of balkiness, and with a veterinary surgeon and three other semi-experts who testified to the cause and effects of laminitis, to which they attributed the horse’s unwillingness to pull, after having had a hard day’s work, an all night drive and one day’s absolute rest.
This was a question peculiarly within the experience and judgment of the jury and we see nothing in the evidence to cause us to disturb their finding. The plaintiff apparently acted in good faith. He wrote the defendant immediately after he had worked the horses and discovered the difficulty and offered to return them, but the defendant’s reply while denying all charges, was of that evasive and unsatisfactory nature that fails to inspire confidence in the author. The first motion cannot be sustained.
The second motion is not properly before us. The statutory provision in relation to motions for new trial is as follows :
"When a motion is made in the supreme judicial court to have a verdict set aside as against law or evidence, a report of the whole evidence shall be signed by the presiding Justice ; when the motion is founded on any alleged cause not shown by the evidence reported, the testimony respecting the' allegations of the motion, shall be heard and reported by the justice, and the case shall then be marked law.” Rev. St., ch. 84, sec. 58.
The motion based on newly discovered evidence falls within the latter part of this section but like that governed by the. first part, it must be made in court, and the term "court” as applied to actions at law means a court in session. A Justice in vacation is not the court.
[81]*81The distinction is carefully observed throughout the statutes and any powers to be exercised by a Justice in vacation are granted in express terms. The following are illustrations. Application for a writ of habeas corpus may be made "to the supreme judicial or superior court in the county where the restraint exists, if in session ; if not, to a justice thereof; and when issued by the court it shall be returnable thereto ; but if the court is adjourned without day, or for more than seven days, it may be returned before a Justice thereof and be heard and determined by him.” Rev. Stat. ch. 101, sec. 6. The writ itself may be issued by the Supreme. Judicial Court, or either of the Superior Courts', or any of the Justices thereof. Rev. Stat., chap. 101, section 4. "A petition for a writ of mandamus may be presented to a justice of the supreme judicial court in any county in term time or vacation.” Rev. Stat., chap. 104, sec. 17. Notice on a petition for review "may be ordered by any justice of the supreme judicial court in term time or vacation.” Rev. Stat., ch. 91, sec. 2, and "on presentation of a petition for review, any justice of said court may in term time, or in vacation, stay execution on the judgment complained of, or grant a supersedeas.” Rev. Stat., chap. 91, sec. 5.
The same distinction is recognized with reference to filing in the clerk’s office, documents material in a pending suit. Rev. Stat., ch. 84, sec. 22; the ordering of notice upon proceedings to quiet the title to real estate; Rev. Stat., ch. 106, sect. 47, and Laws of 1907, chap. 62, sec. 1.
The general power of ordering notices is conferred by chap. 84, sec. 1, in these words: "When it appears that the defendant has not had sufficient notice, the court may order such further notice as it deems proper. Any justice of the supreme judicial or of either superior court may order notice concerning any civil proceeding in or out of term time, directing how it shall be given, and such order, when made in vacation, shall be indorsed on the process.” This power of ordering notices in vacation was conferred by chapter 32 of Pub. Laws of 1875, prior to which time it vested in the court alone.
The term civil proceeding or process as here employed is "a generic term for writs of the class called judicial,” It does not embrace mere [82]*82motions in a pending cause. Rule XVII of this court also provides that "when a motion for a new trial is made for any other cause (than that the verdict is against law or evidence) the evidence in support thereof, shall be taken within such time as the court shall order, or the motion will be regarded as withdrawn.” No power is conferred upon a Justice in vacation to make such order. All of these requirements, both of statute and of rule, were ignored in the present case. The motion was not filed in court but presented to a Justice in vacation, after two terms had intervened since the trial, and the order of the Justice that the motion be allowed and filed, and the evidence taken before a designated stenographer prior to a given date, was made in vacation.
Moreover the statute requires that the testimony respecting the allegations "shall be heard and reported by the justice,” meaning the Justice presiding at the term when the motion is filed. Rev. St., ch¡ 84, sec. 53 ; or as the earlier statute had it, "shall be heard, examined and reported by the judge.” Rev. St., 1841, ch. 115, sec. 101. In harmony with this is sec. 46 of chap. 79 which specifies among the only cases that can come before the Law Court "cases in which there are motions for new trials upon evidence reported by the justice.” No certificate of the Justice accompanies the report of the evidence in this case and no order sending it forward to the Law Court. It is signed simply by the stenographer and no testimony appears to have been heard or reported by the Justice as the law requires. Bartlett v. Lewis, 58 Maine, 350.
For these reasons this court might with propriety decline to entertain the motion as not properly before it.
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Cornish, J.
Action to recover three hundred dollars, the purchase price of a pair of horses, the trade having been rescinded by the plaintiff because of breach of warranty by defendant. The verdict was for the plaintiff. The defendant filed two motions for a new trial; one on the ground that the verdict was against the evidence and the other based on newly discovered evidence.
The alleged warranty, which was oral, did not relate to the soundness of the horses, but to their willingness to work, the representation being that "they were good horses, all right, and would work anywhere.” The defendant denied both the warranty and the breach. Was there a warranty ? The testimony on this point is necessarily meagre. The plaintiff affirmed it. The defendant denied it. The only testimony outside their respective statements is that of one Head who corroborates the plaintiff to some extent. The jury believed the plaintiff and we think they were justified. The plaintiff bought the horses for working purposes solely, and as there was no representation as to their soundness it is hardly probable that he would have paid the liberal sum of three hundred dollars without some satisfying representation and assurance as to their ability and [80]*80willingness to work, and without even making inquiry as to the fact as the defendant claims. The jury did not err in accepting the plaintiff’s version.
As to the breach of the warranty, the evidence was more voluminous. Three witnesses besides the plaintiff testified to the balkiness of one horse immediately after the plaintiff brought the team home. The defendant met this with seven witnesses besides himself who testified to the work the horses had done while owned by the defendant and the absence of balkiness, and with a veterinary surgeon and three other semi-experts who testified to the cause and effects of laminitis, to which they attributed the horse’s unwillingness to pull, after having had a hard day’s work, an all night drive and one day’s absolute rest.
This was a question peculiarly within the experience and judgment of the jury and we see nothing in the evidence to cause us to disturb their finding. The plaintiff apparently acted in good faith. He wrote the defendant immediately after he had worked the horses and discovered the difficulty and offered to return them, but the defendant’s reply while denying all charges, was of that evasive and unsatisfactory nature that fails to inspire confidence in the author. The first motion cannot be sustained.
The second motion is not properly before us. The statutory provision in relation to motions for new trial is as follows :
"When a motion is made in the supreme judicial court to have a verdict set aside as against law or evidence, a report of the whole evidence shall be signed by the presiding Justice ; when the motion is founded on any alleged cause not shown by the evidence reported, the testimony respecting the' allegations of the motion, shall be heard and reported by the justice, and the case shall then be marked law.” Rev. St., ch. 84, sec. 58.
The motion based on newly discovered evidence falls within the latter part of this section but like that governed by the. first part, it must be made in court, and the term "court” as applied to actions at law means a court in session. A Justice in vacation is not the court.
[81]*81The distinction is carefully observed throughout the statutes and any powers to be exercised by a Justice in vacation are granted in express terms. The following are illustrations. Application for a writ of habeas corpus may be made "to the supreme judicial or superior court in the county where the restraint exists, if in session ; if not, to a justice thereof; and when issued by the court it shall be returnable thereto ; but if the court is adjourned without day, or for more than seven days, it may be returned before a Justice thereof and be heard and determined by him.” Rev. Stat. ch. 101, sec. 6. The writ itself may be issued by the Supreme. Judicial Court, or either of the Superior Courts', or any of the Justices thereof. Rev. Stat., chap. 101, section 4. "A petition for a writ of mandamus may be presented to a justice of the supreme judicial court in any county in term time or vacation.” Rev. Stat., chap. 104, sec. 17. Notice on a petition for review "may be ordered by any justice of the supreme judicial court in term time or vacation.” Rev. Stat., ch. 91, sec. 2, and "on presentation of a petition for review, any justice of said court may in term time, or in vacation, stay execution on the judgment complained of, or grant a supersedeas.” Rev. Stat., chap. 91, sec. 5.
The same distinction is recognized with reference to filing in the clerk’s office, documents material in a pending suit. Rev. Stat., ch. 84, sec. 22; the ordering of notice upon proceedings to quiet the title to real estate; Rev. Stat., ch. 106, sect. 47, and Laws of 1907, chap. 62, sec. 1.
The general power of ordering notices is conferred by chap. 84, sec. 1, in these words: "When it appears that the defendant has not had sufficient notice, the court may order such further notice as it deems proper. Any justice of the supreme judicial or of either superior court may order notice concerning any civil proceeding in or out of term time, directing how it shall be given, and such order, when made in vacation, shall be indorsed on the process.” This power of ordering notices in vacation was conferred by chapter 32 of Pub. Laws of 1875, prior to which time it vested in the court alone.
The term civil proceeding or process as here employed is "a generic term for writs of the class called judicial,” It does not embrace mere [82]*82motions in a pending cause. Rule XVII of this court also provides that "when a motion for a new trial is made for any other cause (than that the verdict is against law or evidence) the evidence in support thereof, shall be taken within such time as the court shall order, or the motion will be regarded as withdrawn.” No power is conferred upon a Justice in vacation to make such order. All of these requirements, both of statute and of rule, were ignored in the present case. The motion was not filed in court but presented to a Justice in vacation, after two terms had intervened since the trial, and the order of the Justice that the motion be allowed and filed, and the evidence taken before a designated stenographer prior to a given date, was made in vacation.
Moreover the statute requires that the testimony respecting the allegations "shall be heard and reported by the justice,” meaning the Justice presiding at the term when the motion is filed. Rev. St., ch¡ 84, sec. 53 ; or as the earlier statute had it, "shall be heard, examined and reported by the judge.” Rev. St., 1841, ch. 115, sec. 101. In harmony with this is sec. 46 of chap. 79 which specifies among the only cases that can come before the Law Court "cases in which there are motions for new trials upon evidence reported by the justice.” No certificate of the Justice accompanies the report of the evidence in this case and no order sending it forward to the Law Court. It is signed simply by the stenographer and no testimony appears to have been heard or reported by the Justice as the law requires. Bartlett v. Lewis, 58 Maine, 350.
For these reasons this court might with propriety decline to entertain the motion as not properly before it. Inasmuch, however, as this point was not raised by the opposing counsel and as evidence under the motion was introduced by both parties, it may be more satisfactory to consider this evidence on its merits.
By agreement of parties, immediately after the trial held at the January term, 1907, the horses were sent to Boston to be sold at public auction. Without the knowledge of the plaintiff, they were bid in by the defendant on February 6, 1907, for $100, and were at once shipped to the defendant’s farm in West Kennebunk where they have since been kept.
[83]*83The newly discovered evidence seeks to attack the verdict along two lines, first, by showing the pitiable physical condition of the horses at the time they were bought at auction by the defendant, as tending to explain the reason why they did not pull on January 13, 1907, at a test made by the plaintiff during the trial in the presence of witnesses who testified to the fact, and second, by showing that since the repurchase, they had never balked but had been faithful workers. The new evidence is bulky, covering one hundred and fifty pages while the testimony taken at the trial covers only sixty two, and it comes from nine witnesses produced by the defendant and from six produced by the plaintiff. It all relates to conditions existing and facts occurring subsequent to the trial, including a test made in the presence of both parties on November 6, 1907, one and a half years after the original sale on May 10, 1906.
While such evidence may in certain cases be regarded as newly discovered, as in State v. Terrio, 98 Maine, 17, where the evidence of certain mechanical experiments with rifle and shells was introduced by the State at the trial, without sufficient opportunity for the defense to meet it, and after conviction, upon a motion for new trial, another expert was authorized to make an exhaustive study of the question in order to test the accuracy of the conclusions reached by the expert for the State; yet the force of such evidence, which might be termed newly-occurring instead of newly-discovered, depends upon the circumstances of each particular case, the nature of the inquiry, and the kind of evidence submitted. Facts of a scientific nature might stand upon a different footing from ordinary testimony.
The new testimony here is merely cumulative on the question of breach' of warranty. We fail to see why the most of it, or evidence equally forceful, could not have been produced at the trial. The test made by the defendant in November, 1907, the result of which is left in doubt, could probably have been arranged while the horses were in the plaintiff’s possession at sometime between the sale in May, 1906, and the trial in January, 1907.
Nor are we greatly impressed with the weight of the new evidence. Had it or its equivalent been offered at the trial, we do not think it probable that a different verdict would have been rendered.
[84]*84The rule governing such motions has been laid down in a recent case in these words : "The true doctrine is, that before the court will grant a new trial upon this ground, the newly-discovered testimony must be of such character, weight and value, considered in connection with the evidence already in the case, that it seems to the court probable that on a new trial, with the additional evidence, the result would be changed; or it must be made to appear to the court that injustice is likely to be done if the new trial is refused. It is not sufficient that there may be a possibility or chance of a different result, or that a jury might be induced to‘give a different verdict; there must be a probability that the verdict would be different upon a new trial.” Parsons v. Railway, 96 Maine, 503.
Applying this rule to this particular case, with that discretion which is actuated "by a desire upon the one hand to put an end to litigation when the parties have fairly had their day in court, and, upon,, the other, to prevent the likelihood of any injustice being done,” it is the opinion of the court that the entry should be,
Motions overruled.
Judgment on the verdict.