Drayton v. Thompson

The discovery of new evidence has been, rarely allowed as a ground for a new trial — and never, where the party might by using due diligence, have procured it before. This appears to be the present case. It is admitted on both sides, that Dayton is only the nominal plaintiff, except for the purpose of giving the defendant the benefit of any equity against the bond : and that Gabel and Corre, who were the assignees and owners of it at the time of the suit, are to be considered as the real plaintiffs.

The single question then is, whether Gabel and Corre might have procured at the trial the evidence they have since discovered. It is stated, that it was then in the knowledge and possession of Drayton, who would have produced it if he had been applied to ; but Gabel and Corre, although apprised of the discount filed, gave no notice of it to him, or made any inquiry whether it was just or not, but suffered the defendant to proceed, ex parte, to substantiate it. Gabel and Corre are therefore guilty of a laches ; for it appears to me to be incumbent on the assignee of a bond, which is in any manner impeached, to give notice to the obligee, that he may come in and defend it; in the same manner as it is incumbent on the grantee of land, to vouch the grantor to defend the title, where that is brought in question» And if the assignee neglects to do this, the *265obligee, like the grantor of land who has not been ’vouched, is not bound by the verdict, but may controvert it in an action to recover, for any deficiency found. If it were otherwise, and if the assignee was not obliged to give notice, it would be imposing an intolerable hardship on the obligee j it would require him to be always on the Watch, and if he should have assigned a number of bonds, (which is the case of many,) it would make it necessary for him to be constantly attending at every court in the state, for fear of discounts, which would be an impossible thing. It is therefore the duty of an assignee to give him notice of any discount that may be set up ; and if he fails to do this, and the discount is allowed, the assignee takes upon himself the risk of its being legal or not. As the assignees here have neglected to give the obligee notice, and it was owing to this that they had not at the trial, the evidence in his possession, 1 am of opinion that there is no ground for a new trial.

of the same opinions and the more so because the plaintiffs might have discontinued their suit as soon as they were surprised at this kind of testimony, and relied on the probability of getting better proof at another court.