
    Daniel M‘Kie vs. John Garlington.
    ih,e granting of a new trial is matter of discretion, and will not be exercised ívítere the court sees that justice has been done.
    So, in an action to try titles, where the original defendant was tenant to the plaintiff and had no right to dispute his title, and a motion was made by a third person to come in under the rule of court, as the real defendant, and the court refused the evidence of tenancy, but suffered the third person ten come in and defend, and upon the trial it appeared that the plaintiff had no title, the court said, although the evidence of. the tenancy should have been admitted, and if proved tbe court thought the second defendant should not have been allowed to come in, yet Justice having been done, a aew trial would not be granted.
    This was an action of trespass to try title. It was originally commenced against Alexander Winn. But at some court previous to the trial the present defendant came into court and moved that as Winn disclaimed any title he might be substituted defendant in his place, alleging that the right of the land was in him. That application was resisted on the ground that Winn was the tenant of the plaintiff, and, therefore, could not dispute his title, and that the plaintiff ought not be placed in a worse situation by substituting the defendant in the place of Winn
    The presiding judge required the parties to lay affidavits before him respecting the tenancy; which being heard he granted the motion.
    At the last term the cause came on for trial before Judge Gaillard, who made the following report:
    “ Garlingtou having been made defendant by order of tbe court, l considered him as the real defendant. He derived his title from Brooks, to. whom M‘Nie sold the land. ¿■¡rooks paid part of the purchase money, $300, in his lifetime. Boyd a witness borrowed, from Brooks $80 which Brooks told him to pay to M‘Kie, which he did. Mrs. Brooks after her husbands death paid M'K.ie $420 and took titles from him; $800 was .the price of the land. In .order that M'Kie, might befriend her and protect the land against Gar-iington’s claim, she delivered her titles to him and he retains them. 1 said to the jury that if they believed from the evidence that M'-Kie had been paid for the land they ought to find lor the defendant; which they did.”
    The plaintiff moved for a new tria!, on the ground that his honor rejected evidence offered by the plaintiff tp shew that Alexander Winn went into possession under him, and suffered the defendant Garlingtou to sot up an adverse title without regard to Winn’s tenancy.
    The plaintiff also moved' the court to set aside the order made in this case substituting Garlingtou as the defendant.
   Nott, J.

I think that if I had presided at the trial cf this case, Í should have permitted the fact of Winns tenancy to have been given in'evidence. I do not think that the plaintiff ought to have been placed in a worse situation by the substitution of another defendant, if Winn were really his tenant. The question of the tenancy and title might both have been left to the jury, together. . But the question comes before the court, notv, after a verdict and after an investigation of the .whole title. And we now see that the plaintiff could have had no rightful possession. The possession which he pretended to have gained was by intrigue and directly in the face of his own deed. The granting of a new trial is a matter of discretion, and will not be allowed where the court sees that justice has been done.. And, much less, will it be done, to enable the party to effect a most palpable fraud. The plaintiff had sold the land, had received the money, made the title, and put- the party into possession. Under- a pretence of protecting a friendless woman he prevailed upon her to deliver up the title to him, which he detained, and then put a person in possession to hold for himself against her. And now he says, he is my tenant and must not be allowed to dispute my title! Under these circumstances he would be considered as the agent of Mrs. Brooks, and the person in possession as her tenant. And as the defendant derived his title from the plaintiff, through Brooks, to whom he had sold, he is entitled to retain, his verdict.

Farrow for the motion.

O’JYeall contra.

The motion therefore, must be refused.  