
    Harbour vs. Rayburn and others.
    
    A new trial will not be granted when the evidence is contradictory and does not greatly preponderate on the side against which the verdict was given.
    A new trial will not be granted on the ground of newly discovered evidence, if it appear that the evidence might, with reasonable attention and diligence, have been procured before the trial, or if it appear from the circumstances of the case, that there is no truth in the affidavit upon which the motion is founded.
    This was an action of detinue brought by the plaintiff against the defendants, in the circuit court of Wayne county; the plea non detinet. The plaintiff claimed under a deed of trust executed to him by hisfather, Elijah H. Harbour, for the benefit of Sally Kerlogue, the daughter of said Elijah. The defendants insisted that previous to the execution of the deed of trust to plaintiff, said ne-groes in the deed mentioned, had been given by said Elijah to the husband of said Sally, and that the property in said negroes was not in said Elijah at the time the deed was executed, but was in the husband, Kerlogue, and as such had been sold. The plaintiff insisted that the delivery of the negro to Kerlogue before the deed was executed, was by way of loan, declared at the time, and not as a gift. There were several mis-trials and continuances, as appears by the record. Upon the last trial, the plaintiff introduced Elijah Harbour, the father of Mrs. Kerlogue, Elisha Harbour, her brother, Mrs. Har-bour, her mother, and Willoughby Pew, to prove the manner in which the son-in-law, Kerlogue, came to be possessed of the negro in dispute. The defendant introduced various witnesses, and the record shows a great contrariety of evidence; the jury returned a verdict for the defendants. The charge of the court was unexcept-ed to by either party. The plaintiff moved for a new trial, on the ground that since the trial he had discovered three material witnesses, by whom he could prove the lending by Elijah Harbour to said Kerlogue, viz. Bell, Allen, and Willoughby Pew, who had been examined. The affidavit of neither of the witnesses, except Pew, is produced, and he was examined at the trial. The judge refused a new trial; from which opinion the plaintiff appealed in error to this court.
    
      J. W. Combs, for plaintiff in error.
    
      J. Yerger, for defendant, in error.
    1. The evidence in this case warranted the jury in coming to the conclusion they did in their verdict. At any rate the evidence does not preponderate so strongly for the plaintiff as to justify a new trial in this case under the rule laid down by this court. 3 Yerg. Rep. 442.
    2. The affidavits present no ground for granting a new trial. They do not show any new evidence. The witnesses mentioned are only additional or cumulative, designed to speak to a point winch was principally m dis-D , r , . , pute on au the trials, and therefore forms no ground lora new trial. 4 Bibb’s Rep. 563: 3 Marsh. Rep. 109-10: 1 Lit. Rep. 39: 1 Bay. 263: 2 Bay. 267: 2 Cain’s Rep. 129: 8 John. 84: 15 John. 210.
    The fact of there having been several mis-trials and continuances, shows conclusively, that the plaintiff did not use due diligence in order to procure the evidence of the witnesses, and for this the new trial must be refused. 18 John. Rep. 489.
    Applications for new trials upon these grounds are not favored, and are looked at with suspicion. 5 Haywood Rep. 32.
    The witness, Pew, was examined at the trial; his explanations afford no ground for a new trial. 2 Cain’s Rep. 129.
    The plaintiff ’s affidavit must be accompanied by that of the witnesses themselves. 3 Hay. Rep. 164.
    The plaintiff, from all the proceedings in the cause, will be seen to have sworn, if not falsely, under such circumstances as do not entitle his statement (that he discovered said witnesses since the trial) to any credit. We see him surrounded by the parties interested, who are his sister, the father, the mother and the brother, and by them endeavoring to prove a loan, the very fact in dispute; and as the record shows, the father caused the suit to be instituted, and yet he swears that he was never informed until after the trial itself, and several mis-trials, that there had been any witnesses to the loan. The facts to fix him with a previous knowledge are too abundant in the record, and the inquiry too natural for him to make, whether there were witnesses to the loan attempted to be set up, to induce any candid mind to believe that he made the discovery after the trial. These facts were known if they existed, and the witnesses too by whom they could be proved, to Mrs. Kerlogue, the party taking under the deed, and this was sufficient; she was bound, and no doubt did, communicate them to the plaintiff.— His affidavit is not entitled to credit. 1 Bay. Rep. 263: 15 John. Rep. 210: 18 John. Rep. 489.
   Green, J.

delivered the opinion of the court.

This is an action of detinue for a negro girl. The plaintiff claims under a deed of trust executed to him on the 28th day of September, 1826, by which the negro was conveyed by Elijah Harbour to the plaintiffs, to be held in trust for the benefit of his daughter, Sally Ker-logue. The negro had been placed in possession of Kerlogue about a year before the execution of the deed, and the only question was, whether she had been given to Kerlogue when thus placed in his possession, or whether she had been loaned only. There were several mistrials, and at last a verdict for the defendants. The plaintiff moved for a new trial upon two grounds; 1st, that the verdict was contrary to the evidence; 2d, that he had discovered material evidence after the trial.

Upon the first ground, it is enough to say that the evidence as to whether Harbour gave the girl to Kerlogue or not, is very contradictory. The juries have found so much difficulty in determining this fact, that there have been several mis-trials. It would be going much farther than this court has ever gone, to order a new trial under such circumstances.

2. The second ground of newly discovered evidence is not sufficiently made out, as set forth in the plaintiff’s affidavit, to authorize a new trial for that cause. The affidavit states, that since the trial the plaintiff has discovered that when Elijah Harbour (the father) put the negro girl into the possession of Kerlogue, he called upon two witnesses to take notice that it was only a loan, and that he can prove this fact by these witnesses; that their residence is distant and he cannot get their affidavits. When we take into consideration that there had been several trials, that Elnah Harbour was in attendance as a witness, that this fact was decisive of the cause, and that if witnesses existed who could prove it, they must have been within the knowledge of Elijah Harbour, whose feelings must be supposed to be strongly interested in the success of the plaintiff’s action, we must either come to the conclusion that there is no truth in the affidavit, or that there has been unpardonable negligence on the part of the plaintiff. We cannot, therefore, on this affidavit, give anew trial. 18 John. Rep. 489.

Judgment affirmed.  