.MzYwMjc.MTI2ODc4

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Boller

vs } Injunction

McClintick

This cause comes on, on a motion to reinstate the injunction & continue the suit, as an original one, on the new evidence which has been exhibited. On examination of that new evidence, the Court sees no cause to depart from its former opinion. The Injunction as has been formerly stated, was granted only on the charges of improper conduct in the Ptl at law in certain particulars not known to the deft. There, at the time of, or until after the trial, Everything in the party's knowledge at the time of his motion for a new trail, must be presumed to be relied on by him, in support of that motion, or waived; Sustaining or overruling the motion, in the Court which has heard the whole of the testimony, & witnessed the whole proceedings in the trail. But suppose the Court of law should have erred; this Court is not the proper tribunal to afford relief - nor will it ever assume such a power. The new evidence then, so far as it related to the merits of the action at law, must be disregarded, and so far as it related to the merits of the question here, is principally hearsay, and that related by a Witness, Jnl. Boller, who cannot be considered free from strong prejudices, and told to him by one whose own testimony is before the Court & was so on the motion to dissolve. There are three charges in the Ptl's. bill, on which, united, the Court granted the injunction Viz. 1st The provision made by the Ptl. at law, for the accommodation of his witnesses &c &c 2d. The treating, as it is termed, of some of the Jury & 3d. The improper intercourse had with them. These were sd. to be facts unknown to the Ptl. here till since the trial at law. The first charge is denied by the answer & disproved by the testimony. The 2d, independent of the fact that it was known by the Ptl. here, before the jurors had even retired to consider of their verdict & therefore might have been obtained of the fact of all its circumstances, and when the juror might have been discharged, the Ptl. at law persisted if anything improper had appeared in the transaction - does appear to me, from evidence on the subject, to have been a mere act of inadvertence, without design & without the possibility of influence. The third is a charge of a more serious nature. It is to be regretted that the circumstances attending it have not been more fully explained. The hearsay evidence, offered by Jno. Boller, if it would be re'd. would have not doubt on my mind of the adverse which I ought to pursue - On the other hand the amt of this transaction given at the bar, would make it more innocent than it appears from the only evidence