The opinion of the court was delivered by Justice Ford.

George Wintermute claimed tire premises in question as devisee thereof under the will of his late father, against his brother, Peter Wintermute, the defendant, who claimed them, under a lease executed to him by their late father, for a term of years not yet expired. Peter took possession under the lease-of which there was no copy or counterpart; the original was-left in the hands of his father after it was executed, and at his-death, was- found among his papers, cancelled. Peter complained of this cancelling as being done without his knowledge- or consent, and that it could not invalidate the lease; on the other hand, it was insisted that the cancelling was done by his-consent; and the lessor of the plaintiff gave in evidence sun*181dry circumstances, from which he supposed the jury might fairly infer, that the cancelling was done with the lessee’s consent. These circumstances, together with those on the other side, the •court put fairly to the jury, who, after weighing them all, found in favor of the plaintiff.

The defendant moves for a new trial. Having proved the execution, existence and validity of the original lease, it was not incumbent on him to prove that he did not consent to its cancel-ling ; he could not prove a negative ; the duty of proving the affirmative, that he did consent to its cancelling, lay entirely on his adversary; and he insisted that the court ought so to have instructed the jury. He makes the want of such instruction •one ground for a new trial. But it appears to me that there is no ground whatever for this complaint. Such a principle was ineither set xip nor intimated as that the defendant must prove a negative ; that he did not consent to the cancelling ; the contrary was directly admitted by the plaintiff; he assumed the •duty of proving the affirmative : of shewing that the defendant did consent to the cancelling; in proof of which he adduced the circumstances on which he relied as evidence of the fact. Whether these were of sufficient weight to induce a belief of the defendant’s consent, was the very question in the cause ; and the court stated it to the jury as intelligibly it appears to me, .as possible, by a presentation of all the circumstances, and leaving the matter to their consideration, whether the proof of consent was sufficiently made out by the plaintiff. If the court had said that the plaintiff was bound to prove the consent of the 'defendant, it would have been merely superfluous, as it was the very thing the plaintiff assumed to do; and the only question before the jury was, not whether he was bound to do it, but whether he had accomplished his task. To this point the court properly directed the attention of the jury.

Another reason offered for a new trial is, that a witness, unknown at the trial, has been subsequently discovered, who heard the testator speak of the lease with great dissatisfaction in his life time, coupled with expressions of great irritation against the lessee, his son, signifying that it was in his power to put an end to it, and raising the presumption higher than it was before, that he cancelled it in a fit of passion: This is what is called *182cumulative or additional evidence, to fortify a point which has-been already tried, in order to make it stronger; which has-been repeatedly refused as any ground for a new trial, 4 Halst. 240. A new witness to character, credit, hand writing, dates, absences, violences and the like, might be found after a half' -a dozen trials, and render new trials endless, if every piece of’ cumulative evidence not known of before, was ground for setting aside a verdict. It ought to respect a new point; one that has cometo light since.the trial, on which the party has never' .been heard; such as the- discovery of a release, or receipt for part payment, or some-new ground of defence ; and not further evidence, in support of an old ground that has been once contested already. There being no good cause shewn for a new trial in this ease, the rule must be discharged.

'Rule to shew cause discharged and judgment ordered.

Cited in Mechanics Insurance Co. ads. Nichols, 1 Harr. 412; Dundee Manfg Co. v. Van Riper, 4 Vroom. 155.