Eastman, J.
It is not often that a question of the kind, raised by the case before us, arises in the practice of the courts of this State. The right of review, by which the lasing party, on issue joined in a civil suit, may, on certain conditions, again try his case after being once defeated, being given by the statutes of this State, the many questions, which have arisen in other jurisdictions where this right does not exist, have not been considered here. Parties who are defeated on the facts, generally resort [170]*170to their statutory rights for á rehearing, and seldom apply to the court for relief under such circumstances. But, in criminal cases no such right exists ; and consequently whenever a case occurs where evidence is discovered after the trial, which the prisoner may deem important to his defence, it becomes the duty of the court to entertain a motion for a new trial, based upon affidavits of the existence of such evidence. Yet the vigilance of friends and counsel, and the aid given by the State in capital cases, in procuring all evidence that is supposed to exist, and the disposition of the court to afford all proper lenity, by deferring and continuing the trial of criminal cases, for the procurement of evidence, whenever they are satisfied that any exists, makes it seldom necessary for motions like the present to be made.
In many jurisdictions the subject has been repeatedly and fully considered; and among them there appears to be very little, if any, diversity of opinion in regard to it. The doctrine of the courts of England, and of this country generally, is substantially the same. A few exceptions only, and those arising out of the peculiar circumstances of each case, are to be found. The following general,principles are clearly deducible from the authorities, and may be laid down as well-established law. First: The evidence must be new ; such as was not used on the former trial; such as either had no existence at the former trial, or the party did not at the time of the trial know was in existence. And this point, the ignorance of the’party as to the existence of the evidence, as it lies at the foundation of the application, must be made clearly to appear. Second: It must be material to the issue joined ; material to the point to be decided by the verdict, and not collateral. It must go to the merits of the case, and not to discredit or impeach a former witness. Third: It must appear that the party has used all reasonable diligence ; that he has been vigilant in seeking both to discover and to procure the evidence. Fourth: It must not be cumulative. In most of the decisions upon motions of this kind, these general positions are discussed and decided, although the precise point raised in each case may not require a decision of the whole. Among the numerous cases to be found upon the subject we cite the follow[171]*171ing: 6 Mod. Rep. 222; 12 Ib. 584; King v. Teal & als. 11 East, 311; Halsey v. Watson, 1 Caines, 24; Vandervoort & al. v. Columbian Ins. Co., 2 Caines, 155; Smith v. Brush, 8 Johns. 84; Pike v. Evans, 15 Johns. 210; Porter v. Talcott, 1 Cowen, 359; The People v. The Superior Court of New York, 10 Wend. 285; Harrington v. Bigelow, 2 Denio, 109; Brisbane v. Adams, 1 Sandford’s (1848, N. Y.) Rep. 195; Commonwealth v. Murray, 2 Ashm. (Penn.) Rep. 41; Commonwealth v. Williams, 2 Ashm. 69; Moore v. The Philadelphia Bank, 5 Serg. & Rawle, 41; Warren v. Hope, 6 Maine Rep. 479; Daniel v. Daniel, 2 J. J. Marsh. (Ken.) Rep. 52; Ewing v. Price, 3 Ib. 520; Roberts v. The State of Georgia, 3 Kelly’s Rep. 310; Irwin v. Jordan, 7 Humph. 167; 5 Halst. (N. J.) Rep. 250.
In New York, and perhaps elsewhere, a few cases may be found which, at first, would seem not to come fully up to the positions above laid down. But an examination of them, as reported at length, will show that they do not impair the general doctrine. Rowley v. Kinney, 14 Johns. 186, and Jackson v. Hooker, 5 Cowen, 207, are among them. This class of cases relates to “ military lots.” In the first case, the court say: “As a general rule, we should refuse granting new trials on the grounds furnished. We have, however, repeatedly, in trials concerning military lots, been more liberal in granting new trials, owing to the obscurity and multifarious frauds attending upon those titles, and especially when the question turns upon the identity of the soldier, from whom the title is claimed to be derived.” In the other case, the court remarks, “ This class of cases is considered peculiar, and as exempt from the ordinary rules in relation to granting new trials.”
Applying the general principles, above laid down, to the case under consideration, we find that the facts set forth in the affidavit upon which the motion for a new trial is predicated, do not come within any principle recognized as a sufficient cause for setting aside a verdict. In the first place, it does not appear that the evidence is new, or that Carr had not, at the time of the trial, full knowledge of Barden’s feelings towards him. Webster [172]*172swears that Barden communicated to him his hostility towards Carr during the trial, and that he made it known to Carr’s counsel for the first time after the verdict was .returned. But this falls far short of showing that Carr himself did not previously know it. For aught that appears he may have been well apprised of Barden’s feelings before the trial took place ; for, if we are to credit the statement of Webster, Barden did not attempt to make any secret of his feelings. The affidavit shows Barden’s hostility, and that it was not communicated to Carr’s counsel till after the trial. But it goes no farther. It negatives in no.way Carr’s knowledge. He may not have known it; but we cannot draw any inference from the affidavit that he did not. All doubt on this point should be excluded ; for the very foundation of setting aside a verdict for newly-discovered evidence, rests upon the basis that the evidence is new, that it was not known to the party till after the trial.
According to some very respectable authorities, even if he did not know it, his ignorance of the fact manifested a want of diligence in ascertaining it, which a court would not overlook; it should have been ascertained when Barden was on the stand. In Wright v. Alexander, 2 Smedes & Marshall’s (Miss.) Rep. 411, it was held not to be good ground for a new trial, that the defendant had discovered that he could have proved the payment of the note sued on, by a witness used on the trial; that, by due diligence, he could have obtained the knowledge befdre the trial; or, by proper interrogatories, have established the fact at the trial. And in Fanning v. McGraney, 1 Iowa Rep. 389, it is laid down as a general rule, that where newly-discovered evidence is expected to be proved by a witness who was called and examined, no new trial will be granted; as the extent of the witness’s knowledge should be ascertained when on the stand. To these cases may be added, Bell v. Thompson, 2 Chitty’s Rep. 194; Vandervoort v. Columbian Insurance Co. 2 Caines, 155; Commonwealth v. Benesh, Thacher’s C. C. Rep. 84; Bennett v. Commonwealth, 8 Leigh’s Rep. 745; The People v. Vermilyea, 7 Cowen, 369.
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Eastman, J.
It is not often that a question of the kind, raised by the case before us, arises in the practice of the courts of this State. The right of review, by which the lasing party, on issue joined in a civil suit, may, on certain conditions, again try his case after being once defeated, being given by the statutes of this State, the many questions, which have arisen in other jurisdictions where this right does not exist, have not been considered here. Parties who are defeated on the facts, generally resort [170]*170to their statutory rights for á rehearing, and seldom apply to the court for relief under such circumstances. But, in criminal cases no such right exists ; and consequently whenever a case occurs where evidence is discovered after the trial, which the prisoner may deem important to his defence, it becomes the duty of the court to entertain a motion for a new trial, based upon affidavits of the existence of such evidence. Yet the vigilance of friends and counsel, and the aid given by the State in capital cases, in procuring all evidence that is supposed to exist, and the disposition of the court to afford all proper lenity, by deferring and continuing the trial of criminal cases, for the procurement of evidence, whenever they are satisfied that any exists, makes it seldom necessary for motions like the present to be made.
In many jurisdictions the subject has been repeatedly and fully considered; and among them there appears to be very little, if any, diversity of opinion in regard to it. The doctrine of the courts of England, and of this country generally, is substantially the same. A few exceptions only, and those arising out of the peculiar circumstances of each case, are to be found. The following general,principles are clearly deducible from the authorities, and may be laid down as well-established law. First: The evidence must be new ; such as was not used on the former trial; such as either had no existence at the former trial, or the party did not at the time of the trial know was in existence. And this point, the ignorance of the’party as to the existence of the evidence, as it lies at the foundation of the application, must be made clearly to appear. Second: It must be material to the issue joined ; material to the point to be decided by the verdict, and not collateral. It must go to the merits of the case, and not to discredit or impeach a former witness. Third: It must appear that the party has used all reasonable diligence ; that he has been vigilant in seeking both to discover and to procure the evidence. Fourth: It must not be cumulative. In most of the decisions upon motions of this kind, these general positions are discussed and decided, although the precise point raised in each case may not require a decision of the whole. Among the numerous cases to be found upon the subject we cite the follow[171]*171ing: 6 Mod. Rep. 222; 12 Ib. 584; King v. Teal & als. 11 East, 311; Halsey v. Watson, 1 Caines, 24; Vandervoort & al. v. Columbian Ins. Co., 2 Caines, 155; Smith v. Brush, 8 Johns. 84; Pike v. Evans, 15 Johns. 210; Porter v. Talcott, 1 Cowen, 359; The People v. The Superior Court of New York, 10 Wend. 285; Harrington v. Bigelow, 2 Denio, 109; Brisbane v. Adams, 1 Sandford’s (1848, N. Y.) Rep. 195; Commonwealth v. Murray, 2 Ashm. (Penn.) Rep. 41; Commonwealth v. Williams, 2 Ashm. 69; Moore v. The Philadelphia Bank, 5 Serg. & Rawle, 41; Warren v. Hope, 6 Maine Rep. 479; Daniel v. Daniel, 2 J. J. Marsh. (Ken.) Rep. 52; Ewing v. Price, 3 Ib. 520; Roberts v. The State of Georgia, 3 Kelly’s Rep. 310; Irwin v. Jordan, 7 Humph. 167; 5 Halst. (N. J.) Rep. 250.
In New York, and perhaps elsewhere, a few cases may be found which, at first, would seem not to come fully up to the positions above laid down. But an examination of them, as reported at length, will show that they do not impair the general doctrine. Rowley v. Kinney, 14 Johns. 186, and Jackson v. Hooker, 5 Cowen, 207, are among them. This class of cases relates to “ military lots.” In the first case, the court say: “As a general rule, we should refuse granting new trials on the grounds furnished. We have, however, repeatedly, in trials concerning military lots, been more liberal in granting new trials, owing to the obscurity and multifarious frauds attending upon those titles, and especially when the question turns upon the identity of the soldier, from whom the title is claimed to be derived.” In the other case, the court remarks, “ This class of cases is considered peculiar, and as exempt from the ordinary rules in relation to granting new trials.”
Applying the general principles, above laid down, to the case under consideration, we find that the facts set forth in the affidavit upon which the motion for a new trial is predicated, do not come within any principle recognized as a sufficient cause for setting aside a verdict. In the first place, it does not appear that the evidence is new, or that Carr had not, at the time of the trial, full knowledge of Barden’s feelings towards him. Webster [172]*172swears that Barden communicated to him his hostility towards Carr during the trial, and that he made it known to Carr’s counsel for the first time after the verdict was .returned. But this falls far short of showing that Carr himself did not previously know it. For aught that appears he may have been well apprised of Barden’s feelings before the trial took place ; for, if we are to credit the statement of Webster, Barden did not attempt to make any secret of his feelings. The affidavit shows Barden’s hostility, and that it was not communicated to Carr’s counsel till after the trial. But it goes no farther. It negatives in no.way Carr’s knowledge. He may not have known it; but we cannot draw any inference from the affidavit that he did not. All doubt on this point should be excluded ; for the very foundation of setting aside a verdict for newly-discovered evidence, rests upon the basis that the evidence is new, that it was not known to the party till after the trial.
According to some very respectable authorities, even if he did not know it, his ignorance of the fact manifested a want of diligence in ascertaining it, which a court would not overlook; it should have been ascertained when Barden was on the stand. In Wright v. Alexander, 2 Smedes & Marshall’s (Miss.) Rep. 411, it was held not to be good ground for a new trial, that the defendant had discovered that he could have proved the payment of the note sued on, by a witness used on the trial; that, by due diligence, he could have obtained the knowledge befdre the trial; or, by proper interrogatories, have established the fact at the trial. And in Fanning v. McGraney, 1 Iowa Rep. 389, it is laid down as a general rule, that where newly-discovered evidence is expected to be proved by a witness who was called and examined, no new trial will be granted; as the extent of the witness’s knowledge should be ascertained when on the stand. To these cases may be added, Bell v. Thompson, 2 Chitty’s Rep. 194; Vandervoort v. Columbian Insurance Co. 2 Caines, 155; Commonwealth v. Benesh, Thacher’s C. C. Rep. 84; Bennett v. Commonwealth, 8 Leigh’s Rep. 745; The People v. Vermilyea, 7 Cowen, 369.
But it is not necessary to place our decision upon this ground; [173]*173since we might, were this the only point in the case, continue the action, and permit the respondent to establish this fact in his favor,‘if he could. Assuming, therefore, that Barden entertained feelings of hostility towards Carr, and that Carr was not apprised of it till after the trial, is the character of this new evidence such as to warrant the setting aside of this verdict ? The evidence is this: one of the witnesses who testified against Carr, entertained at the time hostile feelings towards him, and that fact did not appear to the jury. The issue to be tried was, whether Carr had been guilty of perjury or not. Now, although it was competent for the prisoner to make it appear to the jury that Barden’s feelings were hostile towards him, and thereby, perhaps, lessen the weight of his testimony with the jury, yet the hostility of Barden was not the issue to be tried. His feelings towards Carr were not the point to be settled. And the authorities are very decided, that such is not that kind of material evidence, upon the discovery of which a new trial can be granted; that a new trial will not be granted on account of newly-discovered evidence to discredit or impeach a witness. Most of the authorities above cited apply directly to this point. A few others may be added. Ford v. Tilly, 2 Salk. Rep. 653; George v. Pierce, 6 Mod. 31; Barttell v. Pickersgill, 4 East, 577, note; Thurtell v. Beaumont, 1 Bing. 339; Durgee v. Dennison, 5 Johns. 248; Bunn v. Hoyt, 3 Johns. 255; Shumway v. Fowler, 4 Johns. 425; Commonwealth v. Drew, 4 Mass. 399; Commonwealth v. Waite, 5 Mass. 261; Hammond v. Wadhams, 5 Mass. 353; Lloyd v. Monpacy, 2 Nott & McC. 446; Robbins v. Feraler, 2 Pike, 133; Great Falls Manufacturing Co. v. Mathes, 5 N. H. Rep. 574.
New trials will be granted for misconduct in the prevailing party; for mistake or error in the admission or rejection of evidence ; for irregularity in the conduct of the jury ; for error in the instructions given by the court; and for newly-discovered evidence, where a proper case is made out. But, in deciding motions for new trials on account of newly-discovered evidence, courts have found it necessary to apply somewhat stringent rules, to prevent the almost endless mischief which a different course [174]*174would produce. Careless preparation, tampering with witnesses, repeated and fruitless trials, and immense expense in litigation, would be a few of the many evils attendant upon a loose ’practice in this respect. In cases of magnitude and interest, many witnesses unconsciously contract more or less feeling. Others, from various causes, may entertain hostility from the beginning. This, a party may suspect; but, supposing that a cross-examina tion on the point would not aid him with the jury, he lets it pass. If he loses his verdict, he then seeks to ascertain the fact; and, having ascertained it, procures his new trial. In criminal cases the occurrence would, in all probability, be still more frequent; especially should the prosecution be against a person of wealth, or previous good standing, or where those in the vicinity had contracted prejudices either for or against the prisoner, and consequently took a deep interest in the result. It would also put it in the power of an unwilling witness for the government to give the prisoner a new trial almost invariably; for, after an unfavorable verdict, he has but to express, in the, presence of some one, feelings indicating enmity, and the verdict would be set aside. Courts, therefore, feel themselves bound to hold the rules granting new trials for newly-discovered evidence with strictness; but at the same time to award them, whenever they become satisfied that the ends of justice require that they should be had.
In the present case, the facts presented not coming within any of the principles upon which new trials can be granted, there must be
Judgment on the Verdict.