
    No. 44.
    David N. Burkhalter, plaintiff in error, vs. William Wells et al. defendants in error.
    
       Where the verdict of the Jury is strongly and decidedly against the weight of evidence, a new trial will bo granted.
    Motion for new trial, in Marion Superior 'Court, February 'Term, 1855. Decided by Judge" Worrell.
    This was a claim case. The levy was under a mortgage fi. fa. issued on a mortgage made, by > defendant in fi. fa. to William Wells and Burton W. Dowd, dated- 2d November, 1840, and oh which was entered, “ Recorded in book E, 2d February, 1841. B. W. Dowd, Clerk.” The claimants were purchasers under younger judgments. The whole issue in the case was, whether the mortgage was properly recorded, and within time.
    John Campbell’s evidence agreed upon was, that being informed that there was a defect in the registry of the mortgage, he went into the office and examined the record. It was all perfect, except the name of the mortgagor did not appear to the deed. ILo thinks Burkhalter knew of" the defect before he purchased. Afterwards, he looked again at the record and found it complete. He asked Dowd how it happened. Ho at first evaded, and then admitted, that he had added the name himself, and said he had a right to do it.
    Wiley Williams testified: That he heard Dowd say, that in recording the mortgage, he had neglected to put the signature ; that he afterwards added it, but not within the time allowed for the record of the mortgage.
    The original deed of mortgage was lost.
    B. Hill, testified: That he had seen the original mortgage deed, and that it had the same entry of “recorded,” &e. on it; that he afterwards examined the registry, and found it complete.
    „W. C. Dowd, testified: That he was the son of B. W. Dowd, and used to aid him in his office of Clerk; that according to tlio best of bis recollection, the copy of the mortgage was correct; that he knew of the recording of the original; he recorded it himself, for liis father. It appears to witness that there was some error in the subscription of the name of B. W.' Dowd, Clerk, to tlio certificate of record; but of that be is not positive. The omission, he thinks, ivas of the W, in the name of Burton W. Dowd, Clerk.
    The Jury found a verdict for plaintiffs in ji. fa. A new' trial was moved, on the ground that the verdict was against tlio evidence and weight of evidence. The Court refused the rule, and this is the error assigned.
    Blandford ; Hall, for plaintiff in error.
    Hawkins, representing Cook & Montfort, for defendant in error.
   By the Court.

Lumpkin, J.

delivering tlio opinion.

If Campbell and Williams are to be believed, and', no attempt is made to impeach their testimony, then a new trial should have been granted in this case, upon the ground, that the verdict of the Jury is strongly and decidedly against-the weight of evidence.  