
    DOMINICK GAVEN, Respondent, v. HENRY DOPMAN and AUGUSTUS HELLWIG, Appellants.
    Where the instructions of the Court, though incorrect in law, are all in favor of the defendant, he cannot complain of the error.
    A new trial on the .ground of newly discovered evidence should not he granted where such evidence is merely cumulative, and is that of a witness whose deposition was used on the trial, and particularly where the verdict shows that the jury disbelieved his first statement.
    Appeal from the Superior Court of the city of San Francisco.
    
      Saunders & Booraem and Geo. C. Bates, for Appellants.
    
      Crockett & Page, for Respondent.
    No authorities were cited by counsel.
   Murray, C. J., delivered the opinion of the Court.

Heydenfeldt, J., concurred.

This was an action of ejectment in the Court below. The testimony was conflicting, and the jury found for the plaintiff. The instructions of the Court if incorrect in law are all in favor of the defendant, and he cannot complain of the error. The fifth instruction asked for by thé plaintiff, and given by the. Court, is somewhat ambiguous, but from our understanding of its meaning, we are not prepared to say that it was erroneous, and we do not see how it could have prejudiced the interests-of the defendant.

The Court properly refused the tnotion for a new trial on the affidavit of Conway. It sets out facts entirely cumulative, and it w.ould be a dangerous practice to admit a witness whose deposition has already been used on the trial, to come in after a verdict and patch up his testimony, particularly where the verdict shows that the jury disbelieved his first statement. It is reasonable to believe that he disclosed at least all .he knew in his first deposition, and no greater latitude should be allowed in such a case, than there would be, had the witness-been actually present and examined on the trial.

Judgment affirmed.  