
    Jackson v. Fowler.
    Practice. — Newly-Discovered p Evidence. — Neto Trial. — Supreme (Court.— Where the evidence given on the trial of-a cause is not in the record, on appeal to the Supreme Court, no question is presented as to the overruling of a motion for a.new trial, based upon the alleged ground of newly-discovered evidence.
    Erom the Henry Circuit Court.
    
      T. B. Redding, for appellant.
    
      J. Brown and J. M. Brown, for appellee.
   Perkins, J.

Suit by the appellee, against the appellant.

The complaint was in two paragraphs.

The first was for the amount of a note placed by the appellee with the appellant, as collateral security, and which he had appropriated to his own use, and refused, after the principal had paid the debt on which he was surety, to account for, etc.

The second paragraph contained the common counts at common law, with a bill of particulars.

The paragraphs were severally demurred to, as not containing sufficient facts.

The demurrer was overruled, and exceptions entered.

The paragraphs were severally good.

The first contained a definite description of the note,with the other necessary averments.

The second contained a bill of particulars, duly made part of the paragraph.

Answer:

1. General denial;

2. By way of set-off.

Reply.

The issues were tried by a jury, and a verdict returned for the plaintiff.

A motion for a new trial was overruled, and exceptions reserved.

One of the grounds of the motion was newly-discovered evidence.

The alleged errors assigned are :

That the court erred in overruling the demurrers severally to the paragraphs of the complaint, and in overruling the motion for a new trial.

We have already seen that the first error does not exist.

The only point made by counsel in support of the alleged error in overruling his motion for a new trial is, that the newly-discovered evidence entitled him to such trial. The evidence given on the trial not being in the record, we can not say that the newly-discovered evidence was not merely cumulative, nor that it might probably produce a different result on another trial. Hence we can not say the court erred in refusing a new trial on this ground. 2 R. S. 1876, p. 181, note 2.

The judgment is affirmed, with costs  