
    Brinson vs. Faircloth.
    1. Newly discovered evidence of the same kind as that which was used on the trial, and going to the same point, is cumulative, and therefore not cause for a new trial.
    2. Discovery, after the trial, that a witness for the prevailing party made a mistake in his testimony, is not cause for a new trial, when a correction of the mistake would not be decisive of the controversy, and when there is no explanation of why the fact touching which the mistake was made, was not shown by other witnesses to he what it really was.
    3. It is not improper for the court to send the jury,'under the charge of a sworn bailiff, to the only public house in the town or village where the court sits, to obtain a meal at the public expense, though the house he kept by one of the counsel in the cause with which the jury is charged, he being also a brother-in-law of his client, in whose favor the verdict was subsequently rendered,
    November 21, 1888.
    Evidence. New trial. Practice in superior court. J ury and jurors. Administrators. Before Judge Hines. Emanuel superior court. November term, 1887.
    Reported in tbe decision.
    Josiah Holland, T. H. Potter, Cain & Polhill and Gamble & Hunter, for plaintiff in error.
    Alfred Herrington and Twiggs & Verdery, contra.
    
   Bleckley, Chief Justice.

Brinson, the plaintiff in error, is the step-son of the defendant in error, Mrs. Eaireloth, formerly Mrs. Brinson. He was the administrator upon his father’s estate, in which she, as widow” of the deceased, took dower.. Before the commissioners made their return, he purchased her dower estate, paid her the price agreed upon, $400, and took her deed of conveyance. She afterwards became dissatisfied with the bargain, and filed her bill' for a rescission of the contract and for cancellation of the deed, alleging fraud and misrepresentation on his part in making the purchase. The jury found in her favor, and he moved for a new trial, which motion the court overruled.

The uncontested facts are, that the dower lands in the homestead tract, as finally laid off", consisted of 200 acres; that the commissioners to define the dower acted upon the matter twice, the first time several months be- j fore tbe purchase, and the second time several months aftei'wards; that they laid off at first 83 acres only; that they reconsidered their action and determined to increase tbe quantity to 200 acres, and that after this decision was arrived at, some interval elapsed, and then, in tbe spring of 1886, they actually laid off tbe 200 acres. Their return was dated in February, filed in March, and made tbe judgment of tbe court in December of that year. Tbe deed from Mrs. Brinson, now Mrs. Faircloth,. to Brinson, was executed in October of tbe previous year (1885). It leaves the number of acres blank, and conveys all right, title or interest she has or may have as her dower in tbe lands of her late husband, agreeably to a return of the commissioners “to be made,” etc. Tbe evidence strongly indicates that tbe reason tbe commissioners laid off at first only 83 acres was, that Brinson, tbe administrator, did not show to tbe commissioners all tbe lands of bis intestate or produce all tbe title deeds. It was tbe discovery of this fact which induced them to reconsider. That before tbe widow sold to Brinson, tbe commissioners did reconsider and agree amongst themselves to increase tbe dower in tbe homestead tract to 200 acres, seems certain. Brinson himself says this was so, and that be so informed her. She denies that be gave her tbe information, or that she bad "it from any other source. On tbe contrary, she alleges and testifies that be represented to ber tbat but 80 acres bad been allowed, and in reliance on tbat statement sbe made the sale, and conveyance, knowing nothing of any reconsideration by tbe commissioners.

A new trial is claimed because of tbe newly discovered evidence of Kirkland, who will testify that Mrs. Eairclotb is bis sister, tbat sbe resided in bis family when negotiations were in progress between ber and Brinson, tbat sbe then knew tbe commissioners had determined on allowing ber 200 acres, tbat be advised ber to sell to Brinson, expressing tbe opinion tbat $400 was enough, and that sbe also thought it sufficient. Tbe whole relevancy of this consists in its bearing upon tbe disputed question as to whether Mrs. Eairclotb knew, before sbe conveyed to Brinson, that the commissioners bad reconsidered their first action and determined to allow ber 200 acres. And on this question, it is cumulative; for Brinson testified at tbe trial tbat be himself gave ber tbe information. Tbe newly discoved - evidence, therefore, would be more evidence of tbe same kind to the same point. It would go to support Brinson and to discredit bis adversary as a witness.

Pugbsley, one of the commissioners, and a witness for Mrs. Eairclotb, made affidavit after tbe trial tbat be was mistaken in bis testimony to tbe effect tbat tbe meeting of tbe commissioners to reconsider and their agreement to lay off 200 acres were in 1886, and tbat, on refreshing bis memory, be knows tbe meeting and agreement took place between January and June, 1885.

According to tbe previous decisions of this court, tbe mistake of a witness may or may not be cause for a new trial. Wilson vs. Brandon, 8 Ga. 136; Tarver vs. McKay, 15 Ga. 552; Jones vs. McCrea, 37 Ga. 48; Scofield vs. The State, 54 Ga. 635; Jossey vs. Stapleton, 57 Ga. 144; Booher vs. Worrill, Id. 236; Valentino vs. Wiel, 67 Ga. 15; Maddox vs. Oxford, 70 Ga. 179. Here a correction, of the mistake would not be at all decisive of the merits of the case, for it might be very true that the commissioners agreed upon the change from 83 acres to 200, and Mrs. Eaircloth not have been informed of it. Her knowledge of it was the important matter. Brinson swears she had such knowledge, and she swears she did not have it. The case turns upon the credibility of the one as compared with the other, and at bottom this newly discovered fact would only tend to impeach her by some slight corroboration of him. All it would do for the case would be to render his story more probable, and thus indirectly weaken the force of her contradiction. Moreover, if the fact was as Pughsley now, after refreshing his recollection, says it was, it could most probably have been proved at the trial by some of the other commissioners. It was not a fact unknown to Brinson, and if he relied upon it, why did he not prove it by some of them ? He knew the commissioners had met and decided on the 200 acres before he traded with his step-mother, and when Pughsley testified it was afterwards, why did he not call witnesses to contradict him ? There is no explanation either of his failure to do this, or of his failure to be ready with witnesses to prove the real time of the transaction before he announced ready for trial. As the return of the commissioners was not made till long after his purchase, he must have anticipated that it would become material to show that the decision to which the return gave effect was made before. If the commissioners, other than Pughsley, were inaccessible in time to avail him, that might excuse his apparent want of diligence, but no sucb excuse is in tbe .record.

One of the counsel for Mrs. Eaircloth was ber brother-in-law, and kept tbe hotel in tbe county town where tbe court was held. "Whilst tbe j ury were charged with tbe case, the court sent them to tbe hotel duly attended by a sworn bailiff, to take a meal at tbe public expense. They bad, so far as appears, no improper communication with any one, and neither said nor beard anything touching tbe case. Tbe record is silent as to any other inn or public bouse at which tbe jury could have been entertained, and we take it for granted there was no other. No impropriety, or even irregularity, appears in what tbe court did. In this degenerate age, jurors must eat. It follows that they are to be sent when necessary to where they can get something to eat, and to tbe only place of that kind, when there is but one in town. It was said in tbe argument that tbe very atmosphere of tbe hotel was charged with influence in favor of tbe landlord’s kinswoman and client. If tbe jury were hungry, most likely tbe table neutralized tbe atmosphere during tbe short time they were exposed to its influence.

In tbe other grounds of tbe motion for a new trial, we discover nothing calling for separate notice. If Mrs. Eaircloth testified truly, and tbe jury certainly believed ber, tbe verdict was warranted. It is of doubtful public policy to uphold a purchase by an administrator of a dower estate, made before the return of tbe commissioners has. been filed and finally acted upon by tbe court. Such a purchase by one occupying a sort of confidential relation to tbe widow, and also having duties, it may be, in behalf of heirs and creditors to resist tbe return of tbe commissioners, is rather too hasty. Tbe administrator-represent heirs and creditors in proceedings by the widow to lay off and assign dower. Code, §§4048, 4047. In this case, it seems unfortunate that the administrator did not wait until the proceedings were concluded.

Judgment affirmed.  