Wright v. W. B. Greenwood & Co. , 17 Ga. 418 ( 1855 )

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 prolonging 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.