
    James M. Elliott, plaintiff in error, vs. S. Pinkus et al., defendants in error.
    X. Where a motion for a new trial is based upon newly discovered testimony, and such testimony is that of the clerk of the movant, and the said clerk was examined on the trial, the new trial will not be granted, though the movant and his counsel swear that they did not know that the clerk would so testify, and though the clerk swear that he had not told them he would so testify. The fact that the witness was the clerk, and was sworn on the trial on the subject matter of the newly discovered testimony, is conclusive of want of diligence.
    2. When the evidence is conflicting and the court below refuSes a new trial, this court will not interfere, if there be evidence enough to sxrstain the verdict.
    New trial. Newly discovered evidence. Before Judge Buchanan. Floyd Superior Court. January Term, 1875.
    Report unnecessary.
    Smith & Branham, for plaintiff in error.
    Alexander & Wright; C. Rowell, for defendants.
   Jackson, Judge.

This case is covered by the judgment of this court in Miller vs. Mitchell, Reed & Company, 38 Georgia, 312, and the facts are sufficiently set out in the head-notes.

Judgment affirmed.  