
    
      Boyce vs. Yoder.
    
    Ejectment.
    Error to the Spencer Circuit; Wm. L. Kelt,’/) Judge.
    
      Surprise. Evidence. 'JVew trial.
    
    October 29.
    Surprise, produced by rejection of' deed which party did believe, and had right to believe, from-the circumstances, was admissible evidence, is good ground for new trial.
    
    
      Hat din,for plaintiff; C.A. Wickliffe, íor defendant.
   Judge Robertson

delivered the opinion of the Court.

The court erred in not granting a new trial. The surprise was sufficiently made out, according to the rule in Holmes, &c. vs. M’Kinney, IV. Mon. 4-5. Both the party and his counsel believed and'had a right to believe, that the document which was-rejected, was the original deed from Fitzhugh. It is even very doubtful whether it was- proper to suffer the clerk’s certificate to be explained or contradicted by parol testimony.

Judgment reversed and cause remanded for a new trial.  