
    Joshua Pack v. Garden & Wallan.
    New Trial — Additional Evidence of Same Witnesses no Grounds for.
    Upon an application for a new trial, it is not sufficient where the only allegations are that by a further examination of witnesses, who had formerly testified, the necessary facts would be brought out to justify a judgment.
    APPEAL FROM GRANT CIRCUIT COURT.
    July 7, 1869.
    Lindsey, Scott, for appellant.
    
    Smith, James, for appellee.
    
   Opinion of the Court by

Judge Robertson:

Although the affirmance of the original judgment by an equal division of this court settled no principle, yet it is as binding between the parties as it could have been had this court been unanimous.

Had the facts presented in the petition for a rehearing since filed in the circuit court been shown on the former hearing, the judgment by this court on the.former record might havé been unanimously against the asserted lien. But the petition seeks a rehearing, not on the accidental discovery of new witnesses, but only on the facts that Nichols and another who testified before, would on the further examination, prove additional facts conducing conclusively to prove that there was no lien on Pack’s land which has been subjected to sale on a supposed lien claimed on it. But. both established practice and public policy forbid the disturbance of the judgment on such ground as implies inexcusable negligence in the original preparation of the case.

Wherefore, the judgment dismissing the petition for a rehearing, hard as it may seem, must be affirmed.  