The bar are aware that the Court look with jealousy upon applications like this,1 as it has become so common to apply for a new trial because the verdict was against evidence, or on account of evidence discovered since the trial, and it is so easy to procure new evidence to suit the case. And yet it is absolutely necessary that the Court should have a control over verdicts, for sometimes they seem to be given unaccountably against the manifest justice of the case.

This action is brought upon a contract of sale of a quantity of oil, with a warranty that it should be of a merchantable quality, and should contain a certain proportion of head matter. It is alleged that the contract was not performed in regard either to the quantity or the quality of the oil delivered. The Court have been obliged to look into the whole evidence, in order to see the applicability of that which has *116been newly discovered. The plaintiffs introduced evidence which seemed very strong, and if it had been believed, the damages should have been twenty or thirty thousand dollars, instead of five thousand. On the other hand, it appeared that after the oil had been partly manufactured, so that the plaintiffs could have ascertained its quality, they entered into a reference solely in regard to the quantity delivered, nothing being said of the quality. Two persons, one appointed by the plaintiffs and the other by the defendant, were employed to gouge the oil, and in gouging it is quite easy to ascertain the quality; There was evidence likewise, that if the oil had been as bad as it was represented by die plaintiffs, it would have been impossible to manufacture it into candles; nevertheless it was all sold before the trial, and the purchasers have made no application to the plaintiffs on account of its bad quality. We should have considered it at least a balanced case, notwithstanding the strong evidence on the part of the plaintiffs. Then comes the recently discovered evidence, upon which the application for a new trial is grounded. This is somewhat of a critical matter, as a party may so readily obtain new evidence to supply former deficiencies. Still the Court ought not to shut their eyes to injustice on account of facility of abuse in cases of this sort. The evidence now brought forward is of confessions of the plaintiffs, and the question is whether it is new, or only cumulative. If only cumulative, it does not furnish a sufficient cause for a new trial.1 This is the ground taken in New York, and the reason is, that the party should have taken care to produce evidence enough to establish his point. But this evidence is of a different character. As to the body oil, which is made a subject of complaint, there is a confession of one of the plaintiffs that it was as good as he expected. This is a *117new fact which was not before in the case. The verdict was general, and apparently injustice has been done ; 'and this being upon the trial a nicely balanced case, we think it should go again before the jury, with this new evidence.

New trial granted. *2