The existence of the note was not known until the close of the trial, and therefore there was no want of diligence as to the testimony of Bell. The fact having been established that it was Burnett's custom to give a bond for a deed where part of the purchase money remained unpaid, the note would be proof of the fact that the bond was given as alleged by defendants.
OPINION By the Court:
The application for a new trial was granted upon the ground of newly discovered evidence. It appears that after the trial of the cause the defendants discovered for the first time that the promissory note of Holman to John A. Sutter, Jr., bearing date June 10th, 1849, was in existence. It had been proven at the trial that the uniform habit of the agent of Sutter, in selling lots in Sacramento City, was to give a bond for a conveyance when any part of the purchase money was unpaid, and assuming it to be the fact that such was his uniform practice, the discovery of the Holman note would be of importance little short of the discovery, had such been made, of the bond to Holman. The importance of the note of Holman as evidence upon the issues made is, in this view, most obvious.
As to the question of diligence involved in the application, it having been determined in favor of the defendants by the trial Court in granting the application, it would require a clear case of the absence of reasonable diligence to be shown by the record before we would deem it our duty to disturb the conclusion arrived at by that Court. Diligence, or the want of it, in a particular case, depends in so great a degree upon the various circumstances surrounding the parties and the conduct of the cause, which are peculiarly within the knowledge of the trial Court, that its determination, made in view of them, would rarely be interfered with by us.
Order affirmed.