
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    MOSES CHAMBERS v. RUFFIN BROWN.
    
      \ >• Appeal. )
    To justify the Court of Errors iu overruling the action of the inferior court in refusing a new trial, the record must show that injustice has been done. [Acc. Kelton v. Bevins, Cooke, 90, which see.]
    Thus, when the ground for the application was newly discovered evidence, the bill of exceptions must show what evidence was given on the trial, otherwise it will be presumed the evidence fully justified the verdict. [Acc. Turnley v. Evans, 3 Hum. 223.]
    A new trial ought not to be granted upon the affidavit of the party alone that he had discovered new evidence; the affidavits of the new witnesses should be produced, or, at least, good reason assigned why they were not. [Acc. Cooke, 315; 3 Hay. 159; Meigs, 66.]
    If the record show that a part of the pleadings did exist, which do not now appear at length, the judgment ought not to be reversed for the defect.
    This was an action of trespass, assault, and battery, commenced by the appellant against the appellee, in the Williamson Circuit Court. The declaration is in the usual form, to which the defendant pleaded son assault demesne in a formal manner. Immediately after the plea these words appear on the record, under the signature of the appellant’s counsel, “ Replication and issue.” The cause was tried by a jury who found for the defendant. The appellant then moved for a new trial, on his own affidavit, which stated that after trial he had discovered two material witnesses, and he sets out what their testimony would prove. The motion for a new trial was refused, to which a bill of exceptions was filed.
    It was assigned for error in this Court that the Circuit Court erred in overruling’ the motion for a new trial, and, secondly because there was no issue in the cause.
   WRite, J.

delivered the following opinion of the Court. The bill of exceptions does not show what evidence was given on the trial. We must presume the proof .given fully justified the verdict, as there is no intimation to the contrary. The sole complaint on this point is that a new trial was not granted on the affidavit of the party.

From what appeared at the trial the Circuit Court may have had good reasons to believe the statement in the affidavit was not true; if they did so believe, it was right to refuse the new trial.

Goohe, for the appellant.

Hayes and Dickinson, for the appellee.

Again, — no reason is assigned in the affidavit why it was not accompanied by the affidavits of the newly discovered witnesses themselves. Their affidavits ought to have been produced, or at least some good reason assigned why they were not. This Court ought not to reverse the judgment of the Circuit Court on a question like the present, unless it can be seen very clearly that injustice has been done.

As to the second error assigned, viz. that no issue was joined. The record says there was a replication and issue. It is true, the replication does not appear at length in the record; but, if the record shows a part of the pleadings did exist which do not now appear at length, it would seem hard to reverse a judgment for that defect. And if there is any error here it is the error of the appellant, and not of the Court.  