No. 68.

#### J. J. Wright, plaintiff in error, *vs.*W. B. Greenwood & Co. defendants in error.

[1.] Where the verdict of a Jury is not decidedly and strongly against the weight of evidence, it should not be set aside and a new trial granted.

[2.] A new trial will not be granted on account of newly discovered evi lence,. which does not tend to prove facts that were not directly in issue o.i the-trial, or were not then known and investigated by proof. ^

Assumpsit, &c. in Troup Superior Court, and motion for new trial. Decision by Judge O. Warner, December Term, 1854.

Greenwood & Co. sued James J. Wright "on a note for $816. Wright pleaded that the note was given for the purchase of a negro girl, and that she was unsound in this: that she had white swelling in her left arm, though warranted sound. On the trial, the bill of sale, dated 22d March, 1851, was in evidence ; and it was proven by physicians and others, that in the summer and fall of 1852, and in the year 1853, the negro had white swelling in her left arm.. There was an old sc ir on the arm. From this fact and others, two physicians swore they believed the disease had been of “some time” standing;, they could not say how long. On the other side, it was proven by neighbors who had known the negro in North Carolina, that she was sound, and did the ordinary work of negroes, up to the time of her sale. A physician there testified, that in 1841, he lanced a large boil on her left arm, after which it healed readily ; that at first he supposed it to be white swelling; but after its healing so readily, he was satisfied it was not. It was also-proven, that twelve months after the sale, Wright “ expressed himself” satisfied, and promised to pay the note. This is the substance of the evidence. The Jury found a verdict for Greenwood & Co.

Wright moved for a new trial — 1st. Because the verdict was contrary to the evidence. 2d. For newly discovered evidence in this: that he could prove by one William R. Hardy, of' Heard County, that the negro was lame and unsound in the *419left arm, three days after the sale. This last ground was supported by the affidavit of Hardy stating the fact, and that he had never before communicated it to Wright; and the affidavit of Wright, as to the truth of this ground.

The Court refused the new trial, and this decision is as- - signed as error.

Bull & Ferrell, for plaintiff in error.

Morgan, lor defendants in error.

*By the Court.*

Starnes, J.

delivering the opinion.

[1.] We are not prepared to say, that this verdict is contrary to the evidence. At all events, we are satisfied, that it is not so decidedly and strongly against the weight of evidence, as to authorize an interference with the verdict of the Jury.

[2.] The newly discovered testimony, which was presented upon the motion for a new trial, is, in its nature, cumulative evidence — such as had been received already, as to the question, whether or not this slave was diseased with white swelling at the time of her sale to the plaintiff in error (March 1851). That testimony was presumptive, it is true, but so is this; and it goes to the same point. Its tendency is greatly to strengthen that presumption; and it seems very hard that it cannot be received. I confess that I have leaned very much towards receiving it. But we find the rule inflexible, that a new trial will not be granted because of the discovery of *any*evidence, which does not tend to prove facts that were not directly in issue on the trial, or were not then known and investigated by proof. It is impossible for us to say that this fact was not, on the first trial, investigated by proof. *(Grah.*N. *T. Ch.*13. *Moore vs. The Phil. Bank, 5 Serg. & R.*40. *Warren vs. Hope,*6 *Greenlf.*479.)

The sound reasons on which the rule is based, viz: the necessity that there should be an end to litigation; the encouragement which a different practice would hold out to the *420prolonging of suits, and to the introduction of perjury, for the purpose of presenting new evidence, quite reconciles me to what appears something of a hardship in this particular case.

Judgment affirmed.