Wend. R., 285, et. seq.,) which is cited in that opinion as the authority for this decision.

If the opinion was right, it was casually right, as it was upon an erroneous assumption of facts nowhere appearing in the case, and upon a mistaken view of the authority cited in the opinion to uphold it.

But the appellant insists the opinion is in disregard of the numerous direct and controliug authorities cited by the appellant, bearing upon the precise question involved in this case, and upheaves and overthrows the law as it has been defined and applied from the days of Lord MANSFIELD down to the decision per ALLEN, J., (34 Barb., 291,) and, such being the true state of the question, in the language of COMSTOCK, J., (Tracy agt. Talmadge, 14 N. Y. R., 210,) "it is plainly the duty, as I have no doubt it will be the pleasure of the court, to retrace its steps and correct the errors it may have committed."

The decision should be reviewed and the order should be reversed.

Rosekrans, J.-The defendants set up as a defence a special agreement, and on the trial they testified to such an agreement.

The plaintiff testified that he made no such agreement. The referee gave his decision upon the number of witnesses instead of the weight of evidence and the probabilities of the case as he should have done.

The plaintiff has since discovered new evidence to prove that he was not present at the time and place the defendants testified the agreement was made. This evidence is adding to or heaping up upon his evidence, denying that he made any such agreement. It is, therefore, cumulative within all the reported cases, and I do not wish to hear any further argument upon the subject; if my brethren do, they can say so.

Potter, J.-I don't wish to hear any further argument upon the subject.

Adams agt. Bush.

The motion should be denied.

We

James, J.-Further argument will be unnecessary. investigated the question fully at the last term, and we hold that this evidence is cumulative within all the decisions.

Adams, appellant.-Within all the decisions? There is not a decision in point in the United States or England to uphold such a decision, or that tends in the slightest degree against the motion for a new trial. Even the case cited in the opinion (10 Wend. R.,) is point blank against the deci sion.

How can you get around the definition and illustration of the term cumulative, as given by SAVAGE, C. J., on page 294 ?

What do you make of the criticism passed by Savage, C. J., (pp. 294-5,) upon your special term authority? (2 Caines, 129.)

That case as an authority here is whittled down to nothing.

How can you avoid the force of the comments and illustrations of SAVAGE, C. J., (pp. 296-7,) upon the case of Sargent agt. Denniston, (5 Cow. R., 114-22,) proving that this newly discovered evidence to prove an alibi is not cumulative evidence?

How do you get over the stream of authorities I presented to the court in my former points? Are we to have a decision founded upon the law, or upon mere will?

I insist there is no case in the United States or England tending in the slightest to support this decision.

The cases in 2 Caines and 10 Wend. do not support it, and the authorities are universally against it.

Rosekrans, J.-We deny the motion, but without costs. Potter, J.-I do not see any reason why he should be exonerated from costs. He should pay costs.

Rosekrans, J.-The motion is denied with $10 costs. Order entered accordingly.

Adams agt. Bush.

BOCKES, J., took no part in the decision.

NOTE. The following is the pith of the decisions referred to by the appellant: 1st. After a trial and verdict for plaintiff for damages, £161, a motion for a new trial on the affidavit of defendant's attorney, stating that the defendant sailed for a foreign port, &c., and that since the trial and absence of the defendant he (the attorney,) had discovered in a memorandum book of the defendant a receipt. On the special circumstances of the case, and the discovery of very material evidence above stated, the court made the rule absolute for a new trial. (Broadhead agt. Marshall, 2 Black., 955.)

2d. If credit given to the former witness arose from circumstances which are falsified by affidavit, a new trial may be allowed. The court observed that though it was unusual to grant a new trial on evidence contradicting the testimony on which the verdict had proceeded, discovered subsequent to the trial, yet as the very facts on which those witnesses had founded themselves were falsified by the affidavits produced, they thought it afforded a sufficient ground for a new trial, and accordingly granted a rule nisi.

The affidavits could not be contradicted and therefore the court made the rule absolute. (Lister agt. Mundell, 1 Bos. and Pull., 42; see the note in appellant's first points, of the case of Fabrilius agt. Cock, 3 Burr, 1771, approved in 5 John. R., 250.)

3d. The court has a right to direct a new trial if it sees that justice cannot be done in consequence of the facts not having been fully investigated at the trial. (Barstow agt. Reynolds, 37 Eng. L. and Eq. R., 468.)

4th. The newly discovered evidence must be material and of a decisive character, and such as to induce belief that injustice has been done. (Mechanics' Fire Ins. Co. agt. Nichols, 1 Harr., 410.)

5th. A new trial will be granted when material evidence of a distinct species from any that was given at the former trial is newly discovered. (Watts agt. Howard, 7 Met., 478.)

6th. Although the newly discovered evidence is intimately connected with some parts of the testimony at the trial, yet, if it be specifically distinct, and bear upon the issue, a new trial will be granted. (Vardeman agt. Byrne, 7 How. (Miss.,) 365.)

7th. The court will not refuse to grant a new trial on the ground of newly discovered evidence for the reason that such evidence is cumulative merely, if it is sufficient to render clear that which was before a doubtful case. (Barker agt. French, 18 Vt., (3 Washb.,) 460.)

8th. Newly discovered evidence, in order to entitle a party to a new trial, should ordinarily be upon some point not raised at the trial so as not to come fairly within the denomination of merely cumulative evidence, or, if so, it must at least be of such a character as prima facie to raise a strong probability that it will be decisive of the case. (Burr agt. Palmer, 23 Vt., (8 Washb.,) 244.)

9th. Where a new trial was sought, on the ground of newly discovered evidence, though the witness lived near the party seeking the new trial, but he did not know their testimony, and this evidence was to new points, a new trial was granted. (Aiken agt. Bemis, 3 Woodb. and M., 348.)

10th. By cumulative evidence is meant additional evidence of the same general character to the same fact or point which was the subject of proof before, but evidence of distinct and independent facts, of a different character, though it may tend to establish the same ground of claim or defence, or relate to the same issue, is not cumulative within the rule. (Waller agt. Graves, 20 Conn., 305.)

It was also held in that case, in effect, that a new trial would be granted even though the new evidence was cumulative if the effect of it would be to render clear and positive that which was before equivocal and uncertain. Illustration:

"The ground of defence to an action for a libel, brought by A against B, was, that the libelous writing, after it was signed by B, and before publication, was altered by the insertion therein of material words, without the knowledge or approbation of B; and on the trial, C, who drew up the writing, testified that the writing, as published, was not like the paper written by him and signed by B, in that it did not contain the words in question; and it was afterwards discovered that D, without the knowledge or consent of either B or C, inserted those words. On a petition for a new trial, brought by B, it was held that the testimony of D, showing this fact was not exceptionable as cumulative evidence."

Adams agt. Bush.

11th. Newly discovered evidence to prove an alibi is not cumulative; nor does it come within the objection as tending to impeach the testimony of a witness. It tends to disprove the main fact. (Sargent agt. Denniston, 5 Cow. R., 108, 122, 123.) That case is commented on and directly approved in 10 Wend. R., (296,) and both are directly in point to support Seeley agt. Chittenden, (4 How. P. R., 265, 268; affirmed 10 Barb., 303.)

12th. In Chatfield agt. Lathrop (6 Pick., 417, 418,) the court granted a new trial for the purpose of impeaching the principal witness of the defendant. That case is approved in 10 Wend., 297.

13th. In Guyott agt. Butts, (4 Wend. R., 581, 582, 583,) the line of distinction is clearly drawn, per MARCY, J.:

"If the evidence newly discovered, as well as that introduced on the trial, had a direct bearing on the issue, it may be cumulative, but we are not to look at the effect to be produced as furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled; the kind and character make the distinction. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition and yet be so dissimilar in kind as to afford no pretence for saying they are cumulative."

14th. In an action for fraudulent misrepresentations of the credit of a person to whom the plaintiff was thus induced to loan money, which he lost in consequence, moved for a new trial on the ground of newly discovered evidence explaining and adding to conversations from which the alleged misrepresentations were inferred, or proving other parts of such conversations, and altering their effect. Held, that the newly discovered evidence was neither cumulative nor impeaching so as to justify the refusal of a new trial. (Simmons agt. Fay, 1 E. D. Smith, 107.)

15th. In Platt agt. Munroe (34 Barb., 291,) the rule is stated, "in modern practice they are liberally granted in furtherance of justice."

ALLEN, J., in conclusion, "I am of opinion that the proper development of the truth and the advancement of justice required a new trial," (p. 298.)

The principles of those cases have been so clearly defined and so long and uniformly applied that they should be regarded by all pure, unprejudiced and intelligent courts, as settled principles of law for the security of the person, the property, and the rights of all citizens. Are they to be oppressively and imperiously scorned and trampled in the dust?

From the cases mentioned it will be seen that the practice, from the earliest to the latest, (just preceding the decision of this case,) has uniformly been to grant new trials for newly discovered evidence to prove that a demand or defence is founded on fiction, supported by perjury;" or for the subornation of witnesses; or for an erroneous credit given to former witnesses whose evidence is falsified by affidavits; or to overthrow a case or defence established by, or predicated upon fraud, artifice, or trickery; or to impeach the principal witnesses; or to prove an alibi of parties or witnesses, &c., as was distinctly proposed in this case; or to render clear that which was before a doubtful case; or where the facts were not fully investigated to attain the rights of parties; or to explain or add to conversations, or proving other parts of such conversations and altering their effect; and in general for "the proper development of the truth and the advancement of justice" between the parties, in such manner and upon such terms as shall prove that the court is worthy of the name of a court of justice.

Short of this the court lends itself as a mere instrument of oppression and wrong; it judicially sanctifies the perjury and the subornation of witnesses; lends credit to falsified testimony; upholds and judicially ratifies fraud, artifice and trickery; crushes to earth truth and right; and that security of person and property which should be for all citizens alike, is rendered dependent upon the caprice, the favoritism, the sinister purpose, the hatred or the revenge of the judge who controls the decision of the question.

H. C. ADAMS, Appellant.

Cardwell agt. Hicks.

SUPREME COURT.

THOMAS C. CARDWELL agt. JOHN J. HICKS.

A person who takes a note, which is fraudulent in its inception, without knowledge of the fraud, and pays for it partly in cash and partly by discharging a precedent debt, is a bona fide holder for value only to the amount of the cash paid. INGRAHAM, P. J., dissenting: Holding that the court of appeals in the case of Young agt. Lee, (2 Kern., 551,) have settled the doctrine that a party who receives accommodation paper and surrenders the note of the party from whom it is received, before such note is due, is a bona fide holder for value.

New York General Term, May, 1862.

INGRAHAM, LEONARD and CLERKE, Justices.

MOTION for new trial on judgment at special term.

By the court, LEONARD, Justice. It must be assumed that the defendant offered evidence sufficient to go to the jury upon the question of fraud in the inception of the note, unless the plaintiff is bona fide holder of it for value. The note is for $517.50.

The plaintiff had a demand against C. Wirgman for about $250 money, collected by him for the plaintiff, which he discharged, and paid to Wirgman the balance of the note in money before maturity, and without any suspicion of the alleged fraud practiced upon the defendant, when the note was obtained. To the extent of the money paid by plaintiff on receiving the note, there is no doubt of his right to recover. The judge at the trial charged the jury that if they believed that the plaintiff paid a part of the note in cash, without knowledge of the fraud alleged by the defendant in the making and issuing of the note, he became thereby a bona fide holder, and entitled to recover the whole amount with interest, and that the defendant had no defence to the part taken for a precedent debt.

Twenty years of judicial construction and decision have not fully terminated the controversy in this state, so ably