Dickinson, Judge,
delivered the opinion of the court:
It is assigned for error that the court below erred in refusing to charge the jury as required by counsel, and in refusing to grant a new trial upon the newly discovered testimony. We will consider these objections in the order in which they are presented. We understand it to be a rule well settled, and supported by all the authorities, that a court is not bound to instruct the jury as to the law arising upon the abstract principle which may be presented. How far the instructions might have been applicable to the case before the jury, it is impossible for this court to determine; for to enable us to form a conclusion whether such instructions were proper or not, and calculated to have an influence upon the finding of the jury, it was unquestionably necessary that the whole or a sufficient portion of the evidence should have been included in the bill of exceptions to have shown their applicability. It is a principle that cannot be controverted, that to sustain a writ of error on the ground that the court neglected to charge the jury upon any question of law which arose out of the facts of the case, it must • appear upon the record, not only that the facts • upon which such question of law arose were in evidence in the cause, but also that the court was distinctly called upon to instruct the jury as to the law on that point. As then we have nothing in the record before us to the contrary, we must presume that the court below considered the instructions asked for as improper, or inapplicable to the state of the case before them, and rightfully overruled the party’s motion. The application for a new trial is deserving of more consideration.' Although it is usual for a party to combine all his reasons in a motion for a new trial, yet when as in this instance, after the rejection of the first application, the plaintiff in error believed he could rest his case upon other and better grounds, of which he was not before privy, we can discover no good reason why he should not be permitted to-avail himself of any advantage he possessed, when he presents in proper time. The Circuit Court having on the first motion already solemnly determined that the evidence was sufficiently clear and explicit to justify the verdict, and that it conformed to' the law, we will consider the reason, to wit; newly discovered testimony, upon which the-plaintiff in error evidently relies in his second application. There are certain principles upon this subject which must be considered settled. 1st. The testimony must have been discovered since the trial. 2nd. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3d. It must be material to the issue. 4th. It must go to the merits of the case, and not impeach the character of a former witness. 5th. It must not be cumulative. People vs. Sup. Ct. of N. York. 10 Wend. 292; 4 Johns. Rep. 425.
It cannot Be denied but that the evidence was discovered since the former trial, and its materiality is proved by the record. Whether it goes to the merits of the case, or impeaches the character of a former witness, is impracticable for this court to determine, as the evidence given upon the trial is not before us. It is not clearly perceived in what manner the evidence of Bass was expected to be material to the defendant. That it might however have been material, and its bearing perceived by the court before whom the cause was tried, is by no means improbable; and while we are willing that every reasonable and probable inference favorable to the opinion of the court below should be indulged, it must be conceded that unless the proof made before the jury is stated on the record it will be impossible for us to perceive whether the testimony which the applicant expects to prove is relevant and will furnish proper matter for the consideration of a jury. The party does not show that he made any effort to, discover testimony of a character similar to that which he expects to prove, nor that he could not have substantiated the same fact by some other witness. It only remains for us to consider whether the new testimony is cumulative. And that it is so is clearly shown in the bill of exceptions, in which the court below say that it conduces to prove, thereby indicating, as we understand, contributing or tending to prove certain facts in relation to which some testimony had already been produced on the trial. Cumulative means additional evidence to support the same point, and which is of the same character with evidence already produced. See Price vs. Brown, 1st Strange, 691. We are strengthened in this view of the subject, because the exceptions do not state whether this new testimony establishes facts which bear directly upon the issue, and were not in proof before, and which are in themselves so material to the question that they might vary the result, or whether this further evidence merely tends to confirm the former testimony, or goes to discredit the plaintiff ’s witness without disclosing any new fact materially tending of itself to vary the defence. The court below, it is true, say that the testimony is material to the issue, but do not say that it related to any new fact. The whole of the evidence adduced before the jury, with that proposed to be produced, has been also before the court'below; that court has thought propel’, in the exercise of that legal discretion with which it is vested, to refuse the application. No doctrine is better settled than that which regulates applications of this sort, addressed as they are to sound discretion of the court. That discretion is to be exercised, it is true, not arbitrarily, but in consonance with the rules and usages of law, in furtherance of the justice of the cause. From any thing apparent on the record, we are totally at a loss to perceive upon what fact it was expected this court could predicate an opinion. The bills of exception contains no statement of the evidence given on the trial,. and the record furnishes nothing from which we can infer either the nature or weight of evidence upon which the parties thought proper to rest the decision of their cause. As the party excepting to the decision of the court has not thought proper to make the evidence produced on the trial part of the record, every intendment should be indulged against him, and in revising that decision the court is bound to presume every fact, susceptible of proof and not repugnant to the statements contained in the bill of exceptions, to have been fully established; and these views are fully sustained in the ease of Wise vs. Heurd, decided at the last term of this court. Thus proceeding, the principle is not perceived upon which the decision of the Circuit Court ought to be disturbed upon the errors assigned. This case,, from its original commencement to its final termination in the Circuit Court, seems in its progress to have been conducted with an object in view and upon principles difficult for this court to perceive; and it has given us some labor to see distinctly into its merits, and to free it from the almost inexplicable confusion by which it is obscured. It will be recollected this is an action for breach of contract, and that there is a material distinction between actions ex contractu and ex delicto. In 1 Chit. Plead, p. 28, and in 1 Saund.
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Dickinson, Judge,
delivered the opinion of the court:
It is assigned for error that the court below erred in refusing to charge the jury as required by counsel, and in refusing to grant a new trial upon the newly discovered testimony. We will consider these objections in the order in which they are presented. We understand it to be a rule well settled, and supported by all the authorities, that a court is not bound to instruct the jury as to the law arising upon the abstract principle which may be presented. How far the instructions might have been applicable to the case before the jury, it is impossible for this court to determine; for to enable us to form a conclusion whether such instructions were proper or not, and calculated to have an influence upon the finding of the jury, it was unquestionably necessary that the whole or a sufficient portion of the evidence should have been included in the bill of exceptions to have shown their applicability. It is a principle that cannot be controverted, that to sustain a writ of error on the ground that the court neglected to charge the jury upon any question of law which arose out of the facts of the case, it must • appear upon the record, not only that the facts • upon which such question of law arose were in evidence in the cause, but also that the court was distinctly called upon to instruct the jury as to the law on that point. As then we have nothing in the record before us to the contrary, we must presume that the court below considered the instructions asked for as improper, or inapplicable to the state of the case before them, and rightfully overruled the party’s motion. The application for a new trial is deserving of more consideration.' Although it is usual for a party to combine all his reasons in a motion for a new trial, yet when as in this instance, after the rejection of the first application, the plaintiff in error believed he could rest his case upon other and better grounds, of which he was not before privy, we can discover no good reason why he should not be permitted to-avail himself of any advantage he possessed, when he presents in proper time. The Circuit Court having on the first motion already solemnly determined that the evidence was sufficiently clear and explicit to justify the verdict, and that it conformed to' the law, we will consider the reason, to wit; newly discovered testimony, upon which the-plaintiff in error evidently relies in his second application. There are certain principles upon this subject which must be considered settled. 1st. The testimony must have been discovered since the trial. 2nd. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3d. It must be material to the issue. 4th. It must go to the merits of the case, and not impeach the character of a former witness. 5th. It must not be cumulative. People vs. Sup. Ct. of N. York. 10 Wend. 292; 4 Johns. Rep. 425.
It cannot Be denied but that the evidence was discovered since the former trial, and its materiality is proved by the record. Whether it goes to the merits of the case, or impeaches the character of a former witness, is impracticable for this court to determine, as the evidence given upon the trial is not before us. It is not clearly perceived in what manner the evidence of Bass was expected to be material to the defendant. That it might however have been material, and its bearing perceived by the court before whom the cause was tried, is by no means improbable; and while we are willing that every reasonable and probable inference favorable to the opinion of the court below should be indulged, it must be conceded that unless the proof made before the jury is stated on the record it will be impossible for us to perceive whether the testimony which the applicant expects to prove is relevant and will furnish proper matter for the consideration of a jury. The party does not show that he made any effort to, discover testimony of a character similar to that which he expects to prove, nor that he could not have substantiated the same fact by some other witness. It only remains for us to consider whether the new testimony is cumulative. And that it is so is clearly shown in the bill of exceptions, in which the court below say that it conduces to prove, thereby indicating, as we understand, contributing or tending to prove certain facts in relation to which some testimony had already been produced on the trial. Cumulative means additional evidence to support the same point, and which is of the same character with evidence already produced. See Price vs. Brown, 1st Strange, 691. We are strengthened in this view of the subject, because the exceptions do not state whether this new testimony establishes facts which bear directly upon the issue, and were not in proof before, and which are in themselves so material to the question that they might vary the result, or whether this further evidence merely tends to confirm the former testimony, or goes to discredit the plaintiff ’s witness without disclosing any new fact materially tending of itself to vary the defence. The court below, it is true, say that the testimony is material to the issue, but do not say that it related to any new fact. The whole of the evidence adduced before the jury, with that proposed to be produced, has been also before the court'below; that court has thought propel’, in the exercise of that legal discretion with which it is vested, to refuse the application. No doctrine is better settled than that which regulates applications of this sort, addressed as they are to sound discretion of the court. That discretion is to be exercised, it is true, not arbitrarily, but in consonance with the rules and usages of law, in furtherance of the justice of the cause. From any thing apparent on the record, we are totally at a loss to perceive upon what fact it was expected this court could predicate an opinion. The bills of exception contains no statement of the evidence given on the trial,. and the record furnishes nothing from which we can infer either the nature or weight of evidence upon which the parties thought proper to rest the decision of their cause. As the party excepting to the decision of the court has not thought proper to make the evidence produced on the trial part of the record, every intendment should be indulged against him, and in revising that decision the court is bound to presume every fact, susceptible of proof and not repugnant to the statements contained in the bill of exceptions, to have been fully established; and these views are fully sustained in the ease of Wise vs. Heurd, decided at the last term of this court. Thus proceeding, the principle is not perceived upon which the decision of the Circuit Court ought to be disturbed upon the errors assigned. This case,, from its original commencement to its final termination in the Circuit Court, seems in its progress to have been conducted with an object in view and upon principles difficult for this court to perceive; and it has given us some labor to see distinctly into its merits, and to free it from the almost inexplicable confusion by which it is obscured. It will be recollected this is an action for breach of contract, and that there is a material distinction between actions ex contractu and ex delicto. In 1 Chit. Plead, p. 28, and in 1 Saund. 153 n., it is laid down, “ that where there arc several parties, if the contract is joint, they should all be made defendants, and that an omission of one can be taken advantage of by plea in abatement, unless it appears on the face of the declaration, or some other pleading of the plaintiff, that the party omitted is still living as well'as that he jointly contracted, in which case the defendant may demur or move in arrest of judgment or support a writ of error-; or it will be good .ground of non-suit if, upon the trial, the plaintiff fails to prove a joint contract; for although in actions of tort one defendant may be'found guilty and the other acquitted, yet in action for the breach of contract, whether it be framed in assumpsit, covenant, debt or case, a verdict could not in general be given against one defendant in a joint action without the other, unless there was some personal inability in point of law which would not render the contract obligatory, as infancy or coverture or the like.” We are led to these remarks from the fact that previous to the first trial and issue joined, the plaintiff in the court below entered a nolle prosequi as to iwo of the defendants Tate and Rogers. At common ¡aw, where there are several defendants, a plaintiff may in tort enter a nolle prosequi as to apart of the defendants and proceed against the others; but the rule is different in actions upon joint contract; for a discontinuance as to one operates as a discontinuance as to all, unless in cases where, as previously remarked, one of the defendants pleads matter which goes to his present discharge. Such as bankruptcy, infancy, and such other pleas'as go to the action of the writ; and this doctrine is fully sustained in the case of Noke and Chiswell vs. Ingham, 1 Wilson, 89; Gibb vs. Morrill, 3 Taun. 307; Chandler vs. Parker, 3 Esp. Rep. 77; Tidds Prac, 632; also in Hartness vs. Thompson, 5 Johns. Rep., 160; and Hale vs. Rochester, 3 Cow. 374. The. rule of the common law, however, upon this subject was changed and modified by the act of the General Assembly, passed 10th January, 1816. See Steele and McCamp. Dig., 312 and 313, in which it was .provided that “ in all cases where there shall be several defendants to any suit or action, some of whom are summoned or taken, and others not taken, the plaintiff shall be at liberty to proceed against those summoned or taken, or may continue his cause and award alias writs till another term, at which time he shall proceed against those appearing.” It is upon this statute, we presume, the plaintiff below proceeded when he entered a nolle prosequi against such of the defendants as were not .summoned or taken and elected, to proceed against Robins alone.
We are not prepared to say, nor do we deem it necessary to express any opinion, as to what might have been the result if there had been any objections made to the filing of the second, or, as it is termed, amended declaration, in which Tate and Rogers are again introduced as defendants, as to whom, after the filing of a plea to the merits by Rogers, the plaintiff below again entered a nolle prosequi. The plaintiff in error, by his appearance, clearly waived any advantage which he might have possessed, and precluded himself from making any objection to the further proceeding on the part of the defendant in error. We deem it however proper here to remark that though in modern times great latitude has been allowed as regards amendments, yet they are always limited by due consideration for the rights of the other party. The discretion which j;r allowed to the courts in granting amendments has certainly in this instance been liberally exercised; for if a plaintiff can be permitted to introduce new parties (as Tate and Rogers must, in this case), be considered, he can upon the same principle introduce a new and distinct cause of action, wholly changing the defendant’s liability as well as the nature of his defence. It is unnecessary to comment further upon the proceedings in this case for the errors, if there are any, are waived by the act of the plaintiff in error, or cured by the 118th and 119th sections of the Rev. Ark. Code, 635, 636; which provide “ that when a verdict shall have been rendered in any cause not the judgment thereon shall, be arrested or stayed for any mispleading, discontinuance, insufficient pleading, or misjoinder,” but “ that such omissions, imperfections, defects and variances, and all others of a like nature not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the court when the judgment shall be given, or by the court into which such judgment may be removed by writ of error.”
We are therefore of opinion that the judgment of the Circuit Court ought to be affirmed with costs.