#### John R. Adam v. David Hay.

From Cumberland.

In an action against a Common Carrier on the Cape-Fear River, there was a verdict for the Plaintiff, and Defendant moved for a new trial, supporting his motion by an affidavit that he expected to prove by the witnesses whom he examined on the trial, a custom among the owners and freighters of Boats on the River, winch would have excused him from the liability of a common carrier: That he was disappointed in their evidence and thereby surprised : That since the verdict he had discovered witnesses who he believed would prove the custom, and that he did not know of their testimony until after the verdict. Motion for a new trial disallowed.

The Defendant was sued as a common carrier on the River Cape-Fear, between Fayetteville and Wilmington.

There was a verdict for the Plaintiff, and a rule for a new trial was obtained upon the following affidavit, to-wit,

“ The Defendant swears that he had been induced to believe that the “ witnesses whom he summoned to prove the custom of the owners and “ freighters of boats upon the River, would have sufficiently proved the « custom, so as to excuse him as a carrier: and that he was surprised at « the trial, to learn that they would not. That since the trial he has dis- “ covered witnesses who he believes will prove the custom, and that he * did not know of their testimony until since the trial.”

The rule for a new trial was discharged, and the De» fendant appealed to this Court: And

Daniel, Judge,

delivered the opinion of the Court:

We do not see any facts disclosed in the affidavit to induce us to grant a new trial. We know of no custom which could excuse the Defendant from the operation of the law governing common carriers. If such a custom do exist, and it would aid the Defendant, it is strange he should have been unable to prove it on the trial, as the Court was liolden in the town where the greatest part of the commercial transactions on the Cape-Fear are carried on. Let the rule be discharged.