Cope, J. concurring.

In passing upon applications for a new trial, much must be left to the discretion of the Judge below ; and we interfere reluctantly with the exercise of that discretion. Two affidavits were made by the witness Archibald—the last some months after the first, and after the time for filing affidavits or statements on the motion had elapsed. The Court was not bound to receive this last affidavit, and should not have considered it unless some good reasons were shown. But it was not bound, after having received it, to give it conclusive effect, especially as the affidavit is not definite as to the fact of mistake in the testimony on the trial. A very clear showing of mistake by the witness as to a material fact deposed to by him should be made, to induce the Court to grant a new trial on this ground, and then it should appear that the mistake was injurious to the party, and that he had no means or had used due diligence to counteract the mistake or to correct it. In a long and severely litigated case, with many witnesses, it would scarcely ever happen that some of them would not be willing to depose that his language when on the stand needed some qualification, or that his memory was confused or uncertain as to some fact to which he had sworn without properly qualifying his statements. It would be a premium for importunity and improper arts, though there is no suspicion of such a course here, to hold that a new trial should be granted whenever a witness was willing to qualify the statements he made on the stand. At any rate, we would not be justified in holding that the Court below erred in refusing to grant a new trial for the cause assigned.

The other points do not seem to be well taken. Judgment affirmed.

A