
    LEE vs. BANKS.
    
      From the General Court,
    
    
      flagging for- appellant ■, Monroe and Sharp, for appellee.
    Oct. 7.
    The court appeais wilf not award a ^0ia1i1,ion tha^the'ver-diet was not supported by ^'¡Je^there was evidence f»m, which y,g facts material to their verdict.
    tion,tak,en de bene esse,., °evidence of the ^^¿r,aets^g j.ria}) is not‘a sufficient case °f surprise to ™<?nfo\-anev¿ trial.
   Oeinion o®-the CoüRt, by

Ch. J. Boyle.,

THIS is an appeal taken by the defendant from a ■judgment rendered for the plaintiff, in an action of as-sbmpsit upon the warranty of the soundness of a horse, The only error assigned, is, in the refusal of the court below’ t-o grant a new trial.

■ The new trial was asked for on the grounds, 1st. that the verdict vjqs contrary to evidence; 2d., that the de-fendapt was surprised by the rejection of-a deposition ©fféred by'him to be read on the trial.

The first- of these grounds was clearly untenable. The evidence very satisfactorily proved the warranty. ' *f‘‘the‘soundness of the horse sold by the defendant to the ^iaihtiififand although the evidence with respcct’to '-the'unsóu-ndnéss of the horse at the time of the sale, ts not so 'convincing,/yet it was of a character from j&h the jury might infer'the fact,.and in such a case, fchi'l Court has invariably refused.- to interfere for the piirpolh of awarding a new trial, in opposition to the opinioffofithe inferior court. '

' ;VTh© second-ground for the new trial, is no less teh'able.-;-The defendant s.-vv’ore that he was surprised the rejection;of-the deposition; but that alone was 'not'/suffici.ent to .entitle him1,to a new- triah.on the ground offsOTgrise. .He. should, moreover,. Iiav.e shown, that thé^wás ‘some reasonable cause of surprise, and this £hrwfí'offj'-!faUéd'ío 'do.;' for the deposition. appears lo have been taken without the slightest pretext for it, the witness being in the county and able to attend the trial, and no suggestion made that he had designed to leave the state. At the rejection of a deposition thus taken, no one of the most ordinary diligence and attention to his business, could have been surprised.

The judgment must, therefore, be affirmed with costs and damages.  