
    Cones v. Ryman.
    Where the evidence is not in the record, the refusal of a new trial on account of newly discovered evidence, will be presumed to be correct.
    APPEAL from the Decatur Circuit Court.
    
      Saturday, June 6.
   Davison, J.

Ryman, the appellee, who is the assignee of one Joseph Speer, was the plaintiff, and Robert Cones, the defendant. The complaint states that Speer, on the 10th of December, 1851, advanced the defendant 365 dollars, to-be paid out to sundry persons for the said Speer; that of this sum the defendant did pay out 253 dollars and 60 cents, leaving in his hands 111 dollars and 40 cents of the money so advanced for the use of Speer, who, on the 1st of January, 1855, demanded the last-named sum of the defendant, but he refused payment; that Speer afterwards, &c., sold and transferred his claim, as above stated, to the plaintiff, who demands judgment, &c.

The defendant answered, 1. By a general denial. 2. Payment to Speer before the assignment.

J. S. Scobey and W. Cumback, for the appellant. ”

J. Hyman, for the appellee.

The Court tried the cause, and found for the plaintiff 111 dollars and 40 cents. And thereupon the defendant moved for a new trial, on the ground of newly discovered evidence; but his motion was overruled, and judgment rendered upon the finding of the Court.

Though the defendant’s motion is supported by the requisite affidavits, still we are not prepared to say that the judgment is erroneous. We have decided that the refusal to grant a motion for a now trial on account of newly discovered evidence, will not be disturbed where such evidence does not seem obviously sufficient to change the result upon a new trial. 4 Ind. R. 637. Here, the evidence given on the trial is not set out in the record. It was, however, before the Circuit Court; and that Court, no doubt, considered it in connection with the proposed evidence, and has, in effect, decided that if produced it would not change the preponderance in favor of the defendant. In the absence of the testimony given in the cause, we must presume in favor of the decision of the Court below.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.  