
    James Lynch & Bonett v. Martin Sherlock.
    Work and Labor — Inconsistency of Pleading.
    New trial’ should be granted on, when shown.
    APPEAL PROM CAMPBELL CIRCUIT COURT.
    September 29, 1869.
   Opinion op the Court by

Judge Williams :

Although the affiants, .Spect and Miles, testified before the court for the plaintiff upon the trial, the important facts stated in Miles’ affidavit were not communicated to appellants until after the judgment was rendered.

The fact that the work spoken of by Miles was not set up in the original petition, but in an amendment filed a few days after the original and before the work could possibly have been done after bringing the original suit, and it being for a larger sum than sought to be recovered in the first petition, renders the facts stated by Miles highly probable, and if these be true there is no doubt but Sherlock recovered a larger amount than he is entitled to, and this secured by his own improper conduct.

'The refusal of a new trial was erroneous, wherefore the judgment is reversed, with directions for a new trial and further proceedings.

George R. Fearons, T. F. Ilallam, for appellants.

Hawhins, for appellee.  