Page:Federal Reporter, 1st Series, Volume 6.djvu/596

 584 FEDKKAL BEPOETEH. �or custom. In order to have "commercial usage take the place of general law it must be so uniformly acquiesced in, and for such a length of time, that the jury will feel them- selves constrained to find that it entered into the minds of the parties and formed a part of the contract." Lyons, etc., V. Culbertson, 83 111. 37. �The plaintiffs have failed to sustain their action, and judg- ment will be for defendant and his costs expended herein. ���MaNSFIELD, FbeESB & Co. V. DUDGBON & GOBDON. �{Circuit Court, W. D. Michigan, 8. D. November 26, 1880.) �1. New TRiAir— StTBPRisB and Nbwly-Discoveked Evidench. �Motion for new tria} upon the grounds of surprise and newly-dis- covered evidence granted under the circumstances of thia case, where the same was not brought to a hearing until af ter the expiration of 11 years from the time it was entered. — fED. �Assumpsit. Motion for New Trial. �E. S. Eggleston, for plaintiffs. �Chas. H. Stewart and Hughes, O'Brien d SmUey, for de- fendants, on the argument of motion. �WiTHET, D. J. In November, 1869, this cause was tried and a verdict for plaintiffs rendered for over $6,000. A mo- tion for a new trial was then entered, but bas never been brought to a hearing until now, after eleven years have expired. Ordinarily such delay would be sufQeient reason for dismiss- ing the motion, for without very good grounds for justifica- tion no party ought to be forced to retry his case at so remote a day that it may be presumed difficult to obtain the evidence given upon the former trial. But the fact that defendants' attorney, soon after the trial, became and continued seriously ill for a long period, and became a confirmed invalid, unable to attend to the ordinary duties of an attorney, operates as some excuse for delay. It appears, also, that two of the plaintiffs, Mansfield and Freese, were, in 1872, adjudicated bankrnpts, and that their assignee bas never entered an ��� �