
    CALK vs. DANIEL.
    
      From the Montgomery Circuit Courts the Hon.' William W. Blair sole Judge.
    
    Sharp, for Calk; Hardin, for Daniel.
    Oct. 20.
    After a trial, a new tiie^ court r«ay, in their discretion, ^ be filed, the justice of t!l<? ca.se re~ notr<other- Ut wise. ■
   Opinion of the Coüht, by

Ch. J. Boyle.

IN this cause issue was joined upon a plea alleging that the obligation upon which the action was brought, was given for an usurious consideration. On the trial, the jury found a verdict for the plaintiff, and on the motion of the defendant, a new trial was granted,, to which the plaintiff excepted, spreading the evidence upon the record. At a subsequent term, the defendant offered to fije an additional plea, alleging certain facts, and concluding therefrom that the consideration of the obligation on which the action was brought, had wholly failed: but the court refused to permit the plea to be filed, and the defendant excepted. Dn the second trial ^le cailse; ^he jury again found a verdict for the plaintiff, and the defendant moved the court again to grant a new trial; but the court overruled the motion, to which 'the defendant excepted, and a judgment being rendered against him, he appealed to this court.

The additional plea offered to be filed by the defendant after the new trial had been granted, was, no doubt, properly rejected by the court. The court might, in its discretion, have permitted the pica to be filed, if it had been necessary forthe attainment of the justice of the case; but it was evidently not so; for it was apparent from the evidence which had been given on. the former trial, and. which was spread upon the record, that the real point of controversy was, whether the obligation on which the action was founded, had been given for an usurious consideration; and that point was correctly presented in the issue joined between the parties. Besides,'the plea which was rejected, instead of showing that there had been a failure of consideration, as was attempted to be inferred from the facts‘alleged, rather tended to show that the consideration was usurious, and aimed thus at putting in issue the same matter which was involved in the issue already joined between the parties, but in a less appropriate form.

With respect to the refusal of the circuit court to grant a second new trial, it is sufficient to remark, that the evidence was clearly of a character that would not justify this court in awarding a new trial in opposition to .the opinion of the inferior court, especially after two concurring verdicts.

The judgment must be affirmed with costs'and damages.  