Ables v. Donley

• Decision Date: 01 January 1852
• Citation: 8 Tex. 331
• Parties: ABLES v. DONLEY.
• Court: Texas Supreme Court

8 Tex. 331

ABLES

v.DONLEY.

Supreme Court of Texas.

1852.

In revising the judgment of the District Court refusing a new trial, it has been the uniform practice of this court not to reverse the judgment, unless it clearly appears that the party applying has brought his application within those rules which entitle him to a new trial as a matter of law; the inquiry has been, not whether upon the evidence in the record it apparently might have been proper to grant the application in the particular case, but whether the refusal of it has involved the violation of a clear legal right or a manifest abuse of judicial discretion.

The judgment of the District Court refusing a new trial on the ground of newly-discovered evidence will not be reversed, unless it clearly appear from such evidence, taken in connection with the evidence introduced at the trial, that the right is with the appellant. (Note 66.)

Suit on a note; defense, that the note was given for a slave warranted sound, but which was unsound and worthless; proof that the slave fell sick in a few days after the sale and died in about two months; verdict for plaintiff; motion for a new trial on the ground of newly-discovered evidence; the slave had been sold to defendant in September, 1850; affidavit of a witness, in support of the motion for a new trial, that in the winter or spring of 1850 the slave was sold in the city of New Orleans, as a sickly and unsound slave, for $80; that afterwards, in the summer of 1850, the witness saw the slave in Rusk, and from her appearance he believed her to be then unsound, and that he declined to purchase her for that reason; motion overruled: Held, That it was at least doubtful whether a new trial ought to have been granted, and that that doubt was decisive against a reversal of the judgment.

Appeal from Cherokee. This is a suit by the appellee against the appellant on a promissory note. The defendant pleaded failure of consideration, alleging that the note was given for the price of a negro woman, bought by the defendant of the payee of the note on the 27th day of September, 1850, and warranted sound, but which was at the time unsound and worthless.

It was in proof that in a few days after the purchase the negro showed symptoms of disease. In about two weeks she had chills and fever, and in about two months she died. A physician who had seen the negro testified to the effect that he supposed her to have had “typhoid fever,” but he declined to express any decided opinion as to her disease or the cause of her death. There was other evidence introduced by the defendant for the purpose of showing that the negro was unsonnd at the time of the purchase. There was a verdict for the plaintiff.

The defendant moved the court for a new trial, averring the discovery, since the trial, of new and material evidence; and in support of the application he filed the affidavit of two witnesses, one to the effect that in the winter or spring of 1850 the negro was sold in the city of New Orleans for $80, as a sickly and unsound negro; that afterwards, in the summer of 1850, he saw the negro in Rusk; that from her appearance he believed her to be then unsound, and that he declined to purchase her for that reason. The affidavit of the other witness was to the effect that he saw the negro in the summer of 1850, before she was purchased by the defendant; that he discovered that she was lame and she appeared to be defective. The court refused a new trial, and the defendant appealed.

Everts and Davis, for appellant.

The general rules laid down by Curtis in granting new trials upon newly-discovered evidence are, first, the testimony must have been discovered since the former trial; second, it must appear that the new testimony could not have been obtained with reasonable diligence on the former trial; third, it must be material to the issue; fourth, it must go to the merits of the case and not to impeach the character of a former witness; fifth, it must not be cumulative. (5 Wend., R., 114; People v. Superior Court of New York, 10 Wend. R., 285.)

First. The affidavit of Ables shows that the evidence was discovered after the trial, and that he used diligence to procure testimony to support his defense. Ables and Hicks' affidavits show that Ables had no knowledge of the facts stated in Hicks' affidavit until after the trial. And there is no fact or circumstance in any of the evidence connected with the whole transaction which could lead the mind of Ables to suppose that Hicks did or could know anything upon the subject. Hicks, it appears, was in the city of New Orleans in the winter of 1850, where he saw the slave sold, as stated in his affidavit; and it is shown by the testimony of Findly that Weeks bought her in the State of Mississippi in the spring of 1850, and brought her with his family to Rusk.

Is the testimony material? The issue is, was the negro unsound at the time of sale? The evidence of Hicks especially goes to prove that she was unsound before the sale a few months, selling for the sum of $80 as an unsound negro, at a place and at a time when slaves of her description, if sound, would have sold for six or seven hundred dollars. She was sold as a sickly and unsound slave, which terms import permanent disease, which is dangerous and difficult to remove, and one not applicable to an attack of ordinary fever or some slight departure from health, but do clearly imply, as we think, some chronic and lasting disease or disability of body, such as consumption, liver complaint, &c.

If we are right in this position, the evidence is material, and would have produced a different finding, and more especially when taken in connection with the evidence produced upon the trial, though the statements of Hicks are substantive and independent facts, which were not proven by any witness on the trial, and are therefore not cumulative. They do not add to or strengthen any one fact proven on the trial, and if so could not be considered as cumulative.

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