
    
      A. J. Herd v. J. W. & J. C. Cochran.
    New Trial — Diligence—Witnesses.
    Where defendant’s witnesses all resided in the county, and defendant does not appear to have made inquiries as1 to what their testimony would be until after judgment was rendered and execution issued, there was such lack of diligence as to bar an action for a new trial.
    APPEAL PROM MADISON 'CIRCUIT COURT.
    June 12, 1873.
    
      Scott, Capteron, for appellant.
    
    
      Bennett, Brown & Julim, for appellees.
    
   Opinion by

Judge Lindsay :

Appellant fails to show diligence in looking up the testimony to make good his defense to the original suit. The witnesses' examined in this action, are all residents of Owsley County, and are the very persons by whom he had the greatest'reason to suppose he might be able to prove the payment of the Brandenburg and Guy claims, and yet he does not appear to have made inquiry as to what proof they would make until after judgment was rendered and execution issued. Such diligence is inexcusable, and is enough of itself to preclude the court from, granting him; a new trial. But in addition to this, he fails to show himself entitled to relief upon the merits of the new proceeding.

Judgment atñrmed.  