
    Hines & Thomas v. S. M. Helm.
    New Trial — Newly Discovered Evidence.
    A new trial can not be granted because of newly discovered evidence which, could have been discovered and used on the trial by the exercise of reasonable diligence.
    APPEAL FROM WARREN' CIRCUIT COURT.
    December 19, 1872.
   Opinion by

Judge Peters :

The evidence discovered after the trial was to’ the very point in issue on which appellants had adduced evidence and made their defense, and the rule in such cases is that new trials for discovery of parol evidence to the facts in issue and to which evidence had been offered on the trial should be seldom granted, even<(where there had been diligence in preparing the defense. In this case, Thomas, one of the partners and a defendant, knew that Baker was engaged by the firm' to haul the wheat and that he would prove the facts which he stated he would prove, and he failed to have him summoned or to give Hines the information. Nor does it appear that Hines was absent and could not have known what Baker would prove by even slight attention to the business. They have not manifested reasonable diligence in the preparation of their defense and the judgment must be affirmed.

W. Underwood, for appellants.

Rodes & Clark, for appellee.  