
    ORAND, PARAMORE & COMPANY, plaintiffs in error, v. WOLFOLK WALKER, defendants in error.
    (Atlanta,
    January Term, 1871.)
    CUMULATIVE EVIDENCE—SUFFICENT GROUND FOR NEW .TRIAL-—Where, on a trial before a jury, it was in issue whether a horse was sound at the time of a sale, and there was evidence on both sides upon the point, one of the witnesses saying he was slightly lame and continued to grow worse for a year, and after the trial a witness was found who would swear that the horse was not lame at the sale, or for a long time thereafter, when he got a hurt which made him seriously lame:
    Held, That this was only cumulative evidence, and not a ground for new trial. In order to justify ,a new trial on the ground of newly discovered evidence, it must appear that the newly discovered evidence is such as will probably change the verdict.
    *New Trial. Cumulative Evidence. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.
    Orand, Paramore & Company sued Walker for $7’5 00, balance of the price of a horse. That Walker bought the horse at $600 00, and had not paid this balance, was not controverted. But the defense was that the horse was unsound. The defendant testified that plaintiff told him the horse was sound when he bought, but a few days afterwards she was lame, and upon removing her shoe a piece of India rubber or old hat and some pitch was found under the shoe; that she got worse, and that this lameness depreciated her value one-third. He admitted that he never offered to rescind the trade, but sold the horse. The blacksmith testified to the same facts as to lameness, and said the horse became “dead lame” after she was sold by Walker. He testified that rubber or old hat is put under the shoe of a horse which is tender-footed or has corns. Another witness swore that sometimes the horse was dead lame and sometimes lame but slightly. One of the defendants testified that the horse was sound when sold and stated, as did the blacksmith, as to the use of rubber, etc. And another witness testified that he knew the horse well, had driven her and knew she was sound at the sale to Walker. The jury found for the defendant.
    Plaintiff’s counsel moved for a new trial because of newly discovered evidence. In support of this they produced an affidavit of one Brooks, who had frequently rode the horse while Walker had her, and said she was sound then and became lame running away and getting hurt after Walker sold her. The Court refused a new trial, and that is assigned as error.
    Peabody & Brannon, for plaintiffs in error,
    said this new evidence was not cumulative: 10th Wend. R., 294 ; 6 Pick, 417, 418; Code, 3665.
    Blandford & Thornton, for defendant.
   *McCAY, J.

We see no error in the Court in his judgment overruling this motion for a new trial.

1. The newly discovered evidence is cumulative, and by section 3665 of the Revised Code is therefore too late. The distinct issue made on the trial, was the soundness or unsoundness of the horse, at the time of the sale, and there was evidence on both sides upon that question. The blacksmith and the defendant both testified that she was slightly lame very soon after the sale, and,both stated the suspicious fact, that the hoof of the horse had evidently been treated with pitch and India rubber, as if something was the matter. Wolfork Walker testified that this lameness continued getting worse for a year, when he sold her. Now the only effect of this new witness’ testimony is to contradict Walker. That the horse was hurt after Chaoman got her has nothing to do with the question in dispute. The real point of the new evidence is that the horse was not lame whilst the defendant had her, and that matter was the very issue tried,

The evidence, if used on the trial, need not necessarily have changed the verdict. It is utterly inconsistent with the testimony of both Walker and the blacksmith, and the jury might, and so might a new jury, believe them rather than the discovered witness. A new trial will not be granted unless the evidence discovered would probably, at least, change the verdict.

Judgment affirmed.  