Walker v. Graham , 17 Tex. 262 ( 1856 )

Lipscomb, J.

This suit was commenced by the appellant,

before a Justice -of the Peace, in December, 1850. On the 5th day of April, 1851, appellant recovered judgment for one dollar and eighty cents, debt, and thirty-two dollars and five cents, costs. It was taken by a certiorari into the District Court, where it continued until May, 1854, when there was a verdict for Graham for eighty-five cents. There was a motion for a new trial, which was overruled, and judgment was rendered for the amount found by the jury ; from which Walker appealed. The ground of a new trial is newly discovered evidence since the trial, and it was supported by the affidavit of the person who was the constable when the suit was commenced and pending before the Justice of the Peace, to declarations of Graham, the defendant, that a part of the credit he had against the claim of the appellant, consisting of a log chain and two or three dollars, were delivered and paid to appellant’s wife, after he had heard that appellant had obtained a summons against him from the Justice of the Peace, and that he had done it with a view to cast appellant in the costs ; that witness had never told any one of this conversation ; which took place long before, until he told the appellant.

Under all the circumstances of this case, the protracted litigation, the suspicions that would naturally attach to the affidavit of the constable, from his long silence in the midst of the litigation of the matter, and the fact that this credit was before the Court and jury, and that the appellant, if attentive to his interest, could have required it to be shown when the credit accrued, to which may be added the bare possibility that he did not know when the log chain was returned to his wife, and the money paid to her; we cannot say that the Court .below erred in refusing á new trial. The judgment is therefore affirmed.

Judgment affirmed.