delivered the opinion of the Court.

This case comes before the Court on a motion for a new trial, filed by leave of the Court, after a nonsuit on trial at the February term, 1823, and is founded upon exceptions taken to certain opinions of the Court expressed on that trial, and which appear in a case made.

A motion for a new trial is an application addressed to the legal discretion of the Court. It is a call upon the Court to reconsider and reverse a judicial opinion, upon some fact shewn or offered to be shewn, which has deprived the applicant of some advantage to which the fact would legally entitle him. It is indispensably necessary, for the due exercise of this discretion, in relation to the rejection of testimony on trial, that it should appear, that testimony was offered, and what the testimony was, so far as to shew its material-*33it y and tendency to prove tlie issue: For otherwise, the Court would run great hazard of doing an injustice to the opposite party, and, at the same time, of rendering no benefit to the applicant himself. I will illustrate this idea by an hypothetical case. Suppose an affiliated bastard in Court, claiming title as heir to his putative father, under the statute of the 29 th Oct. 1822, and the question to be, whether affiliated or not — that to prove that fact, he should offer in evidence a Certified copy of the instrument of affiliation under the seal of the Probate Court. An objection should be taken to the evidence, on the ground that the original ought to be produced, and the court should, for that cause, reject it, — that, on the exception coming up, I should be of opinion that a certified Copy was legal evidence; but on looking into the case, I should perceive that the instrument was witnessed by only two witnesses, whereas the statute requires three. Now it is quite clear, that, if the opinion had come up in the shape of an abstract proposition, and J had proceeded to act upon it, I should not only have done an injustice to the defendant, but a very ill service to the plaintiff. It is no answer to this objection, to say that the Court volunteered an opinion so broad as to render the offer hopeless. It is true it would be mere form for the purposes of that trial, but not so for the purpose of enabling the Court to judge of the propriety of another. Nor can it be said that the Court are presumed to know the facts from having tried the cause; for, in this government, the presumption is too often contradicted by fact, to warrant any such rule. If a party, from wrong advice or other cause, keep back material testimony in his power, and a verdict pass against him, the law will not indulge him with a new trial, though his cause may be ever so just, because of the vexation to the opposite party So where the error is in the Court, after a verdict, or nonsuit on trial, the plaintiff must shew by his case, that he has been deprived of the use of existing facts which make at least a good prima facie cause of action, before the Court can permit him to call further on the defendant. It is not sufficient that the exception shew that a set of facts, which by possibility may exist, and which would amount to a good prima facie case, have been excluded by the opinion. It must appear that the party had the proof of their existence in his power, and has been actually deprived of it by the decision; but this can be no *34otherwise done, than by such an offer of it on the trial, as will enable the party to have them certified up in his case. Indeed there is the same reason and the same necessity for this rule, on a motion to set aside a nonsuit, that there is for the rule, that a party petitioning for a new trial on the ground of newly discovered testimony, should shew to the Court the nature, extent, and pertinency of the testimony discovered.

It will be but a waste of time therefore, to discuss the merits of the first and second exceptions contained in the case.

It does not appear from the case but that all the testimony was admitted by the Court, which was offered by the plaintiff: And the remaining exceptions are taken to opinions upon the testimony admitted.

The plaintiff’s specification contains two items.

The letter of instructions, of the 7th July, 1817, is the only evidence which I am enabled to perceive, from the case,-to have been offered in support of the first item. This letter, without the existence of other proofs, (which is left to conjecture) does not amount to a prima facie cause of action.

The third exception is to the opinion of the Court, in relation to the legal effect and operation of the receipt, fora Government Bill, dated the 9th November, 1814, which is the foundation of the plaintiff’s second specification. That opinion is, no doubt, correct. It is supported both by reason and the authorities.

The fourth is to the opinion, that parol evidence was admissible to show that the notes mentioned in that receipt, on which the defendant agreed to account, were notes in favor of one Copp, and then in the hands of the defendant, as the agent of Copp. I see nothing in this evidence, inconsistent with the very terms of the receipt itself. The expressions are, “ to account for on notes 1 hold against him.” It is not that clear, explicit, and unambiguous thing which the plaintiff contends. The object to which the accountability is confined, is as little defined as possible. The word “ hold ” does not necessarily imply an ownership of the thing hold-en, and might, without violence to language, be adopled by an agent or consignee, as well as by an owner. And if the property of the notes, holden by the agent at the date of the receipt, was not in him, he necessarily held them as agent, if he held them lawfully. *35If the defendant did not on that occasion hold notes against the plaintiff, in his own right, (of which there .is certainly a possibility) any other decision might have done great injustice to the plaintiff himself. For the defendant made himself accountable for the avails of the bill in no other way, than by an application thereof on notes which he held against the plaintiff. This opinion is therefore unexceptionable.

The next evidence offered by the plaintiff was the receipt from the defendant, dated September 24th, 1815, in full of all demands of every name or nature to that date: Whereupon the defendant gave in evidence a like receipt from the plaintiff to him, of even tenor and date.

These two receipts, interchangeably executed, are proof of a final settlement between these parties, on the 24th September 1815, and a mutual release and discharge of all demands, of whatever name or nature, existing between them, to that dale. This last mentioned receipt necessarily amounts to a full discharge, to the defendant from the receipt of the 9th November, 1814, (if, as the plaintiff contends, it was his own matter) — unless it was competent for the plaintiff to contradict the clear and necessary import of his own discharge, by parol testimony. This is indeed questionable; tlio’ it appears from the case, that the Court did permit him to make the attempt.

The fifth and last exception is to the opinion of the Court, in relation to the testimony of the declarations of the defendant.

There can be no doubt as to the law on this point: and there is as little doubt, but that the decision of the Court was in strict conformity to it.

The motion is denied.