Sherrard v. Olden

6 N.J.L. 419

• Court: Supreme Court of New Jersey
• Decided: November 15, 1796
• Status: Published

Opinion

Kinsey, 0. J.,

delivered the opinion of the court. We are of opinion, that in all cases of this kind the affidavits of the parties are admissible to shew the grounds upon which the application is made. This is conformable to the practice, and we are unable to perceive upon what principles it can be objected to. In the case which has been cited from Douglass it is observable, that the affidavit of the plaintiff, which was offered, went to contradict an important fact in the case upon which the jury had already passed. Instead of shewing that the jury had not hoard his case upon the merits, or that they ought not to have been admitted to take the matter up, it was to shew that they had made an erroneous decision; and Lord Mansfield very properly rejected testimony of this sort. The generality of the language must be restrained by a reference to the circumstances under which it was uttered. In D’Eon’s case, the same judge admitted the affidavit of the defendant upon the question of postponement, which is similar, and no objection of this kind was intimated, though the deposition was fully canvassed, and adjudged insufficient. In Oswald v. Legh, 1 Term Rep. 270,

* which was an application for a new trial, the court expressly desired the defendant to make his affidavit to the circumstances, which was done ; and though his prayer was refused, it was because the facts which he stated were insufficient.

It is, however, unquestionably the duty of the courts to weigh the testimony of parties with peculiar care. The same implicit reliance will not be placed upon their statements as upon those of more disinterested persons; and we shall always be cautious as to the degree of confidence which we repose in them, particularly when any doubts are intimated as to their credibility or character.

At the trial of this cause, the request for postponement was refused, not because there did not actually exist sufficient .reasons to warrant the court in putting it off, but because sufficient grounds did not appear. It was not then shewn, that the defendants had used due diligence; that they!were innocent of any neglect. But we now know that the reasons why these matters were not proved, was, that one of' the parties lay sick in Philadelphia, and the other, who resided in Princeton, was unable to attend; that each was ignorant of the situation of the other; that they did what, under the particular circumstances in which they .were placed, it was reasonable to require of them; and that no exertions on their part would have availed to bring M’Corkle, who is sworn to be a material witness, to the ■trial.

Considering, therefore, all these circumstances, that the defendants have been guilty of no laches, but that a verdict has gone against them for a large amount in an action to which they swear they have a good and substantial defence, we think the interests of justice require that they should have an opportunity to try the question upon its merits by another trial.

Rule made absolute.

See also 4 Taunt., Feize v. Parkinson, where the affidavit of plaintiff is admitted without objection. The court decide, in that case, that they would not grant a new trial upon the mere affidavit of one party contradicting the witnesses on the other side.