
    Ables v. Donley.
    2n revising the judgment of the District Court refusing a new trial, it has been the uniform practice of this court not to reverse the judgment, unless it clearly appears that the party applying has brought his application within those rules which entitle him to a new trial as a matter of law; the inquiry has beeu, not whether upon the evidence in the record it apparently might have been proper to grant the application in the particular case, out whether the refusal of it has involved the violation of a clear legal right or a manifest abuso of judicial discretion.
    The judgment of the District Court refusing a new trial on the ground of newly-discovered evidence will not be reversed, unless it clearly appear from such evidence, taken in connection with the evidence introduced at the trial, that the right is with the appellant. (Noto 0G.)
    Suit on a note; defense, that tho note was given for a slave warranted sound, but which was unsound and worthless; proof that the slave fell sick in a few days after the sale and died in about two months; verdict for plaintiff; motion for a new trial on the ground of newly-discovered evidence; the slavo had been sold to defendant in September, 1850; affidavit of a witness, in support of the motion for a new trial, that in the winter or spring of 1850 the slavo was sold in the city of Now Orleans, as a sickly and unsound slave, for $80; that afterwards, in the summer of 1850, the witness saw the slave in Rusk, and from her appearance he believed her to bo then unsound, and that he declined to purchase her for that.reason; motion overruled: field, That it was at least doubtful whether a new trial ought to have been granted, and that that doubt was decisive against a reversal of the judgment.
    Appeal from Cherokee. This is a suit by the appellee against the appellant on a promissory note. The defendant pleaded failure of consideration, alleging that the note was given for the price of a negro woman, bought by the defendant of tho payee of the note on the 27th day of September, 1S50, and warranted sound, but which was at the time unsound and worthless.
    It. was in proof that in a few days after the purchase the negro showed symptoms of disease. In about two weeks slie liad chills and fever, and in about two months slie died. A physician who liad seen the negro testified to the effect that he supposed her to have had '‘typhoid fever,” but he declined to express any decided opinion as to her disease or the cause of her death. Títere was other evidence introduced by the defendant for the purpose of showing that the negro was unsound at the time of tho purchase. Títere was .a verdict for the plaintiff.
    The defendant moved the court for a new Trial, averring the discovery, since the trial, of now and material evidence ; and in support of the application lie filed the affidavit of two witnesses, one to the effect that in the winter or spring of 1850 the negro was sold in the city of New Orleans for $80, as a sickly and unsound negro; that afterwards, in flic summer of 1850, he saw the negro in Rusk; that from iter appearance he believed her to be then unsound, and that lie declined to purchase her for that reason. The affidavit of the other witness was to the effect that lie saw the negro in the summer of 1850, before slie was purchased by the defendant; that lie discovered that she was lame and slie appeared to be defective. The court refused a new trial, and the defendant appealed.
    
      Everts and Davis, for appellant. _
    The general rules laid down by Curtis in granting new trials upon newly-discovered evidence are, first, the testimony must have been discovered since the former trial; second, it must appear that tiie new testimony could not have been obtained with reasonable diligence on tiie former trial; third, it must be material to the issue; fourth, it must go to the merits of the case and not to impeach tiie character of a former witness; fifth, it must not be cumulative. (5 Wend., R., 114; People v. Superior Court of New York, 10 Wend. R., 285.)
    First. Tiie affidavit of Abies shows that the evidence was discovered after the trial, and that he used diligence to procure testimony to support his defense. Abies and Hicks’ affidavits show that Abies had no knowledge of the facts stated in Hicks’ affidavit until after tiie trial. And there is no fact or circumstance in any of the evidence connected with the whole transaction which could lead the mind of Abies to suppose that Ilieks did or could know anything upon the subject. Hicks, it appears, was in the city of New Orleans in the winter of 1850, where he saw the slave sold, as stated in his affidavit; and it is shown by the- testimony of Findly that Weeks bought her iii the State of Mississippi in the spring of 1850, and brought her with his family to Rusk.
    Is the testimony material? The issue is, was the negro unsound at the time of sale? Tiie evidence of Ilieks especially goes to prove that she was unsound before the sale a few months, selling for the sum of 880 as an unsound negro, at a place and at a time when slaves of her description, if sound, would have sold for six or seven hundred dollars. She was sold as a sickly and unsound slave, which terms import permanent disease, which is dangerous and difficult to remove,
    and one not applicable to an attack of ordinary fever or some slight departure from health, but do clearly imply, as we lliiuk, some chronic and lasting disease or disability of body, such as consumption, liver complaint, &e.
    If we are right in this position, the evidence is material, and would have produced a different finding, and more especially when taken in connection with the evidence produced upon the trial, though tiie statements of Ilieks are substantive and independent facts, which were not proven by any witness on the trial, and are therefore not cumulative. They do not add to or strengthen any one fact proven on the trial, and if so could not be considered as cumulative.
    It may be said that the testimony of Hicks does not show positively that she was unsound at the sale. If it shows anything it clearly proves that the negro had some lingering disease of a difficult and permanent character, of which, by no streteli of mintl, site could have recovered in two or three mouths, although she might have gotten better in her appearance by travel and change of climate, but which, upon the slightest exposure in tiie fall, returned with more malignity, and ended her life. It does appear to us that by no process of reasoning a jury could hesitate, from all the facts before them, to find a verdict for the defendant Abies, and that all the evidence taken together must necessarily produce that conclusion.
    
      Donley and Anderson, for appellee.
    I. On a motion for a new trial upon the ground of newly-discovered evidence. it is necessary to state the names of tiie witnesses, (properly their affidavits should accompany the motion;) that the applicant has been diligent in preparing his cause for trial, stating the facts of diligence; that the court and not the party shall judge tiie cause; that the new facts have been discovered since the trial; that they are material and important, which must be shown by a statement of the facts, and those facts must be of such a nature that, taken in connection with the evidence given on the trial, show that ih© verdict and judgment arc clearly wrong and unjust. The newly-discovered/ evidence must tend to prove facts not in' issue on the trial.
    It must not be cumulative evidence. (Graham on Hew Trials, 463, 464. 465, 470; Ewing v. Price, 3 J. J. Marsh. R., 521; Moore v. Philadelphia Bank, 5 Serg. & Rawle R., 41; Jessup v. Cook, 1 Hals. R., 134.)
    II. The alleged newly-discovered evidence, if it is to be regarded as evidence, is objectional as being cumulative only. If it tends to prove anything, it is to-establish the unsoundness of the negro, the fact principally, almost exclusively, controverted on the trial. It is additional evidence to the same point of the same character with the evidence given on behalf of the appellant on the trial. (The People v. The Superior Court of Hew York, 10 Wend. R., 285.) On a. motion for a new trial on the ground of newly-discovered evidence, it is a well-settled rale not to grant it if the evidence is merely cumulative or in corroboration of testimony to a point presented at the former trial. (Graham on Hew Trials, 485-0-7-8-9-90-01-92; Stciubach v. The Columbian Insurance Company, 2 Caines, 129; Pike v. Evans, 15 Johns. R., 210-213; Smith v. Brash, 8 Johns. R., 84-86; Whitbeck v. Whitbeck, 9 Cow. R., 260; The People v. The Superior Court of Hew York, 5 Wend. R„ 14; 10 Id., 2S5; Chambers v. Chambers’s Administrator, 3 Marsh. R„ 349; Wells v. Phelps, 4 Bibb R., 503 Gardner 0. Mitchell, 6 Pick. R., 114; Yarmouth 0. Dennis, Id., 110; Sawyer 0. Merrill, 10 Pick. R., 10; McGavock 0. Brown and Williams, 4 Humph. R., 451-453.)
    III. Unite the newly-discovered evidence with the evidence given on the trial of the cause, and the weight of evidence would still clearly be with the verdict.
    Had the newly-discovered witnesses been upon the stand anc! given evidence, and a verdict for the plaintiff, we think the court could not disturb the verdict. It wo.uld not appear to be clearly wrong; oil the contrary, we think it would he clearly light. (Briscoe o.Bronangh, 1 Tex. R., 320, 340, and authorities cited.) The controversy was exclusively a question of fact and the particular province of a jury to decide, and they have decided for the plaintiff. To justify a new trial there must he a clear ease of injustice, occasioned by means beyond the control of the party, and a certainty of correcting that injustice, brought to light after the trial and placed within the reach of the appellant. (Graham on Hew Trials, 463.)
    The court will not now inquire whether, taking the newly-discovered evidence in connection with that given on the trial, a jury might be induced to give a different verdict; but would the evidence clearly require a different verdict? (Graham on Hew Trials, 405.) A new trial will not be granted upon newly-discovered evidence where that testimony consists in the swearing of witnesses. (Millar 0. Field, 3 A. K. Marsh., 110.)
   Wheelee, J.

Applications for now trials are addressed to the discretion of the court, governed by certain legal rales. Subject to those rales, the judge to whom the application is addressed must decide as his own sense of justice shall dictate upon the circumstances of such case. It is impossible to prescribe rales which shall afford a certain guide for the determination of every case ; and where the law does not furnish a rule the application must of necessity be addressed to the discretion of the presiding judge. Having presided at the trial, having seen the witnesses and heard them testify, his means of judging of the correctness of the verdict and the propriety of granting a new trial are superior to those afforded the appellate court by a mere statement of the. evidence in the record. Hence, in revising the judgment of the District Court refusing a new trial, it has been the uniform practice of this court not to reverse the judgment unless it clearly appears that the party applying has brought his application within those rules which entitled him to a new trial as a matter of' law. Tlie inquiry has been, not whether, upon the evidence in the rec-orcl, it .apparently might have been proper to grant the application in the particular ease, but whether the refusal of it has involved the violation of a clear legal right or a manifest abuse of judicial discretion.

Note 66. — Shaw v. The State, 27 T., 760.

In the case before ns the new evidence is circumstantial, and is by no means-of a conclusive character and tendency. All that can be claimed for it is that it would add other circumstances to those adduced in evidence upon the trial, tending in some degree to support the defense relied on. But the truth of the disputed fact, that is, the soundness of the negro at the time of the purchase, would be left still doubtful. Whereas, to authorize a reversal of the judgment refusing the new trial, the new evidence, being merely circumstantial, ought to-be of a conclusive tendency, or at least it ought very satisfactorily to establish the fact it is proposed to prove. Such, it is conceived, is not the character of the new evidence on which the present application is founded. It is at least doubtful whether a new trial ought to have been awarded, and that doubt is decisive against a reversal of the judgment. It must therefore be affirmed.

Judgment affirmed.  