
    John B. Kennedy v. B. C. Grider's Ex'r.
    New Trial — Awarding by Court of Appeals.
    Tlie court of appeals will not grant a neiw trial where the jury was not instructed and the finding of the jury was not so palpably against the evidence that the judgment of the court could not stand.
    New Trial — Newly Discovered Evidence.
    A new trial will not he granted because of newly discovered evidence which is merely cumulative and which with due diligence could have been discovered and used on the trial.
    APPEAL FROM WARREN CIRCUIT ' COURT.
    October 9, 1873.
   Opinion by

Judge Peters:

The issue of fact was submitted to the jury without any instructions as to the law of the case. None were asked by either party, and we do not consider their finding so palpably against the weight of the evidence as to authorize this court to interpose, and award a new trial regardless of the judgment of the circuit judge, who heard the evidence and saw and knew the witnesses.

The grounds for a new trial on -the discovery of important evidence are not made out. Several of the witnesses whose evidence has been subsequently discovered were examined on the trial. They were all well known to appellant. Indeed, there seems to have been no diligence whatever used by appellant. Moreover, the alleged discovered evidence relates to facts that were directly in issue on the trial, and were investigated by the testimony then introduced.

Hines & Porter, Gorin, for appellant.

W. Underwood, for appellees.

Wherefore the judgment is affirmed.  