Opinion of the Court-Hawley. C. J.

is entitled to a new trial because he is only a nominal party to the suit. If the Colman Bros. were the real parties in interest, it was their duty to make reasonable efforts to ascertain and procure the testimony upon which they relied, to establish the fact that the suit of Pinschowers v. Rich was fraudulent. Witnesses were introduced who testified to acts and declarations of the Rich Bros. and the plaintiff's at, prior to, and after the attachment in that suit was levied, tending to show that the transaction was fraudulent. McDonald and Harper were the officers who levied the attachment, and one of them took charge of the property as keeper. In the very nature of the case, their position was such that they were liable to hear and know what the Rich Bros. and the plaintiff's had to say or do (if anything) about the transaction, and it was the duty of the defendant and of Colman Bros. to inquire of them whether they had heard or seen anything tending to show the true nature of the transaction. Ordinary prudence suggests that they should have pursued this course. Their failure to do so constitutes such inexcusable negligence as to prevent them from availing themselves of the facts set out in the affidavits.

In Arnold v. Skaggs the court said: "As to the witness Covey, the case not only fails to show diligence in preparing for trial, but shows negligence. He was called by the defendant as a witness and examined at the trial, and the most ordinary diligence on the part of the defendant or his counsel would have led to the discovery of what further, if anything, he knew about the case. That the discovery, under such circumstances, was not made until after the trial, must be attributable to negligence." (35 Cal. 687.)

In Howard v. Winters this court said: "It is for the public good that there be an end to litigation. When, therefore, a trial has been held, and a judgment rendered, a second trial should only be granted to further the ends of justice, and not to relieve litigants from the consequences of their own laches, thoughtlessness, or neglect. The law demands of the parties all reasonable diligence and caution in preparing for trial, and furnishes no relief for the hardships

Opinion of the Court-Hawley, C. J.

resulting from inexcusable negligence or want of diligence. When, therefore, a new trial is sought because of newlydiscovered evidence, it should most certainly be shown by the party making the application that his failure to produce such evidence at the first trial was not the result of any negligence upon his part. Of that fact the court should be perfectly satisfied. To grant new trials upon this ground, where no such showing is made, would simply be giving encouragement to negligence, and judicial approval to inexcusable carelessness." (3 Nev. 542.)

The authorities cited by respondent are to the same effect. (See, also, Toney v. Toney, 73 Ind. 36; Zickefoose v. Kuykendall, 12 W. Va. 30; Atkinson v. Connor, 56 Me. 550; Blake v. Madigan, 65 Me. 530; Brown v. Luehrs, 95 Ill. 197.)

The judgment of the district court is affirmed.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

OCTOBER TERM, 1883.

[No. 1126.]

GILLSON & BARBER; RESPONDENTS, v. WILLIAM E. PRICE, APPELLANT.

CONTRACT FOR CUTTING CORD WOOD, CONSTRUED LIABILITY OF DEFENDANT.— The contract provided that the wood should be delivered, at a certain place, upon the cars of the V. & T. R. R. Co., and was to be paid for "when sale was made and return of sales were received." The complaint alleged that on a previous date an action was brought and judgment recovered for the amount then due for the wood delivered before such date, and for which returns of sale had, before that time been received: Held, that the test of defendant's liability at the time the former action was brought, was whether he had then received returns of sales of wood, although it had not been shipped or delivered on the cars. IDEM-INSTRUCTIONS.-Held, that appellant could not complain of the instruc

tions of the court, as to his liability, which were given at his own request. BURDEN OF PROOF-ALLEGATIONS OF COMPLAINT.-The burden of proof is on the defendant to prove all the allegations of his complaint necessary for his recovery; but he is not bound to prove what goes merely to support the defense, although he has himself alleged them.

Argument for Appellant.

IDEM ESTOPPEL.-Plaintiffs offered in evidence the judgment roll in former suit for the purpose of proving, as alleged in the complaint, that the cause of action was not identical with that litigated and determined in former action. Defendants defense was estoppel: Held, that plaintiffs were not obliged to prove that the wood referred to in this action was not included in the former action; that the defendant's plea of estoppel was new matter, and he was bound to plead and prove it. IDEM-EVIDENCE-ANTICIPATING DEFENSE.-Held, that the court did not err in permitting plaintiffs to anticipate the defense by adducing evidence tending to show that the cause of action in this case was not identical with that in issue and determined at a prior date.

APPEAL from the District Court of the Second Judicial District, Washoe County.

The facts are stated in the opinion.

C. S. Varian, for Appellant:

I. The plaintiff's need not have pleaded the former judgment. In such case the estoppel must have been pleaded and proven by the defendant. Neither is it denied that immaterial averments need not be proved. The contention here is that the plaintiffs have undertaken to avoid the effect of the former judgment, and by their form of pleading have assumed the burden of proof. The question is, what were plaintiffs, under their form of pleading, required to give evidence of in the first instance? Is it not true that at the close of plaintiffs' case it must have been made to appear prima facie that the claims sued on were not identical with those included in the former suit? Under the pleadings the defendant could and must introduce evidence to rebut plaintiffs' claim that the causes of action were not identical. This without reference to his affirmative defense of estoppel, unnecessarily pleaded. Suppose defendant had not set up the estoppel, could he not have introduced the same evidence under his denials to meet plaintiffs' evidence? An affirmative answer decides this appeal. I submit, the case is not within the rule as to immaterial allegations; because, first, the plaintiff's have made all the alleged matters material by so connecting and interweaving them together as to leave their cause of action dependent upon

Argument for Respondent.

them; and because, second, the avoidance of the effect of the former judgment is not wholly foreign or irrelevant to the cause. On the contrary, the question whether the

causes of action in this suit were identical with that in the former case is very relevant and material. None the less so because the plaintiffs, if so disposed, might have left the plea and proof to defendant. I suppose a privilege of this kind may be waived as well by pleading as in any other way. The plaintiffs, having assumed the affirmative, should be held to it. (Steph. on Pl. 425; Chitty on Pl. 229; Bliss on Code Pl. sec. 215; Dickensheets v. Kaufman, 28 Ind. 251.)

II. Suppose the plaintiffs at the trial, having introduced their stipulation that two hundred and sixty-eight and onehalf cords had been cut and shipped, and the record of the former suit had failed to make any proof that this wood was not included in the former action, would not the defendant have been entitled to judgment of non-suit? This seems perfectly clear, notwithstanding an estoppel was pleaded, because the issue is tendered by the plaintiffs and fully met by the denials. (Whart. on Ev. sec. 357; Union Bank v. Ridgly, 1 Har. v. Gill 417; Burgess v. Lloyd, 7 Md. 198; 6 Mod. 218; see, also, as reflecting upon the question: M' Clure v. Pursell, 6 Ind. 330; Kent v. White, 27 Ind. 390; Vieths v. Hagge, 8 Iowa 163; Stevenson v. Marony, 29 Ill. 532; Brown v. Kentfield, 50 Cal. 129; Cowing v. Mc Farlan, 12 Pittsburg Legal Jour. 411.)

Robt. M. Clarke and Trenmor Coffin, for Respondents:

I. The order of proof is a matter resting solely within the discretion of the lower court, and is not subject to review. (1 Greenl. on Ev. sec. 74, note 3, and authorities there cited; York v. Pease, 2 Gray 283.) The burden of proof is upon the party making the allegation, or if the allegation is made by both parties, burden of proof is upon the party whose cause would be injured or destroyed by striking it from the record. (Greenl. on Ev. sec. 74, and notes and authorities there cited; Spaulding v. Hood, 8 Cush. 605-6;