Bleckley, Justice.
1. The tests spoken of by the chemist do not appear to have been made by himself, but by the department of agriculture. Whether he assisted in them is not stated, nor is it stated that they were conducted under his observation.
2. Both parties introduced evidence. The jury could look at the whole case, and were not bound to distinguish the effect of the plaintiffs’ evidence .separately‘considered.
3. If the defendant had collected from his tenants what he ought in equity and good conscience to refund, his promise to refund would not be without the consideration, at least, of a strong moral duty. Granting that he could not be constrained to perform it, he should not .be obstructed in *478his purpose to perform voluntarily. While going forward of his own volition, he should not be pushed off of the path. But we do not see why performance might not be enforced. We think it could be.
4. Mere assertion that evidence has been discovered since the trial is of no value. The usual affidavits should be superadded.
5. The defense pleaded was not proved. Neither was a breach of implied warranty proved with that degree of certainty heretofore held requisite. A new trial should have been granted for deficient evidence.
Judgment reversed.