
    E. Bellinger, Executor of George O. Riley, deceased, v. J. G. Brown.
    Where the proof is no moro than that the sheriff has paid, on an execution, to the plaintiff or to his attorney, a certain sum of money, the reasonable inference or presumption of fact should be that he has derived the means of payment from the party who is liable on the execution; but this is not a presumption incapable of explanation, not one juris et de jure, and hence where opposing facts are adduced, it is the proper function of the jury to settle the dispute.
    Where the jury have been neither forestalled nor misled by any remarks of the Judge, it is within their province to solve all doubts connected with the facts of the case.
    Tried before Mr. Justice Richardson, at Barnwell, Spring Term, 1846.
    This was an action of assumpsit brought by the pi aintiff, executor of George O. Riley, late sheriff of Barnwell District. The action embraced various demands, and the declaration contains several counts, but one of which the grounds of appeal make it necessary to notice particularly. The allegation of the 5th count is substantially, that J. G. Brown, the defendant, on the 19th April, 1841, was indebted to George O. Riley, the plaintiff’s testator, in the sum of §2475, for so much money by the said George 0. Riley paid, laid out and expended for the use of the said J. G. Brown, and at his special instance and request, upon a certain judgment before that time obtained by one J. B. Smith, executor of one Thomas G. Lamar, of full force and effect at the time of said payment, and in active energy against the said J. G. Brown; and being so indebted, the said J. G. Brown, in consideration thereof, assumed, &c.
    In support of this count, the plaintiff produced a receipt, of which the following is a copy:
    Jacob B. Smith /Executor, 1 Rec’d, 19th April, 1841, from G. v. > O. Riley, Sheriff, the sum of two Jabez G. Brown. ) thousand dollars, and also four hundred and seventy-five dollars—being §2475 in part of this case. [Signed] E. Bellinger, Jr., Plaintiff’s Attorney.
    
    The sheriff’s execution book containing the entry of the execution in the case of Smith, executor of ñamar, was also produced, from which it did not appear that any entry whatever had been made of the sum of $2475; either that such sum had been received of the defendant, or paid over to the attorney of the plaintiff in execution; nor did it appear that any entry had been made of the sum of $1280, which it was admitted that the defendant paid to Riley subsequent to the 19th April, 1841, that is to say, about the 9th July, 1841, and by Riley about the same time paid over to the attorney of the plaintiff in execution.
    It further appeared, that a rule on Riley for failing to make the money on the execution against the defendant at the suit of Smith, executor of Lamar, was made absolute at Spring term, 1841.
    It was proved, and indeed admitted, that Riley and Brown were intimate and confidential friends. It was also proved, that in a conversation which occurred about two months after Riley’s death, Brown said there had been unfair transactions against Riley’s estate on the part of his creditors; that there had been matters between him (Brown) and Riley, known only to themselves, but he would take no advantage of Riley’s estate.
    It did not appear that any property of the defendant had been sold by the sheriff.
    
      A. P. Aldrich, Esq., was examined on the part of the defendant, and said that Riley and Brown called on him, on or about the 2d July, 1841, and stating that they could not agree as to the balance due on the execution in the case of Smith, executor of Lamar against Brown, requested the witness to make out a statement of the case for them, which he, the witness, did, from data furnished to him by the parties. The parties did not disagree as to the credits to be given, but as to the mode of calculating interest. So far as the witness knows, his calculation was satisfactory to both: at least neither expressed any dissatisfaction to him.
    The following is a copy of the statement made out by the witness.
    Bond dated 12th January, 1838, for $6000 00 Payable m 3 instalments, Int. from date, 1st instalment due 12th January, 1839, $2000 00 Interest to 8th February, 1839, 149 97
    2149 97
    
      Then paid, 2149 50
    2d instalment, due 12th January, 1840, 2000 00
    3d “ “ “ “ 1841, 2000 00
    4000 00
    lilt, from 12th Jan. ’38, to 10tli April, ’41, 915 37
    4915 37
    Then paid, 2475 00
    2440 37
    Interest to 17th May, 1841, 13 10
    2453 47
    Then paid, 1000 00
    1453 47
    Interest to 2d July, 1841, 12 65
    $1466 22
    This case has been satisfactorily adjusted by the verdict, except as to the plaintiff’s item of 2475 dollars, which was established by the jury. The defendant appeals. On this head, the question was, was this sum, so much money advanced by the sheriff for his friend Brown—or, was it but money paid by Brown to Riley, as sheriff, and by him transferred to the plaintiff on the execution of Smith? &c. The presiding Judge left this question entirely to the jury, under the evidence; but stated that he considered Aldrich’s statement strong for defendant, and that it ought to be conclusive in most cases; but that the circumstances proved, on the part of plaintiff, had introduced doubts, and the jury must decide for themselves. But he intimated no doubt of his own.
    The following are the grounds of appeal:
    1. Because the proof of the payment, by the defendant, of the sum of $2475, was clear and conclusive, and therefore, it is respectfully submitted, that his Honor erred in charging the jury, that on the evidence, it was doubtful whether the said sum was paid by the defendant, or advanced by the plaintiff's testator; and that they (the jury) might find either way.
    
      2. Because the plaintiff’s testator having given the defendant credit for the said sum of $>2475, the irresistible presumption is, in the absence of evidence to the contrary, that it was the money of the defendant, and paid by him.
    3. Because the verdict is contrary to law and evidence.
    The defendant moved the Court for leave to add a new ground, based upon affidavits obtained after the trial, of some circumstances calculated to throw light upon the question of the payment; but as the Court decided unanimously, without comment, against the defendant on this ground, it is deemed unnecessary to report the affidavits at length.
    A. P. Aldrich, for the motion.
    This case should be sent back upon newly discovered testimony. No laches is apparent in the party desiring to introduce it; 1 Tread. E. R., 374; 1 Mill., 69; 2 N. & M., 563. If wrong has been done, the Court can send the case back; Vnnderboot v. Smith, 2 Cain, 155; Hol-lingsworth v. Napier, 3 Cain, 182; Palmer v. Mulligan, 3 Cain, 307. This evidence has been discovered since the last trial; is material, and was unknown to the party; Durant v. Atkinson, 2 Bailey, 18. This Court will exercise discretion to see justice done, unless, by so doing, it violates some rule of law; 1 Cain, 24; 2 Cain, 67; 4 Wend., 579; Cantey v. Blair, 1 Rich. E. R., 41. In equity, the rule is observed, that new7 evidence, differing from the old, may be adduced; 1 Johns. C. R., 51; Watts a. Howard, Admr., 7 Metcalf, 478; Garden v. Mitchell, 6 Picker., 114.
    Martin, contra.
    
    Was the proof sufficient to satisfy the jury? It is not ray province, here, to sustain a verdict by again going over the facts. Against the strong charge of the Judge, the jury found their verdict. They were of the vicinage, and knew more of the facts than we can know. In no case will a new trial be allowed, if by diligence the evidence could have been produced at the proper time; nor if it be verbal only, or oral, or corroborative. It has never been admitted in orn State, when it is cumulative. That here offered is cumulative. It is to bolster Aldrich’s testimony; Vide, Williams v. Baldwin, 18 Johns., 489, as to diligence; and Smith v. Bush, et «/.. 8 Johns. 65, as to its being cumulative; also 2 Cain, 129. After discovered testimony is rarely allowed, and never when neglect is shown; Drayton v. Thompson, 1 Bay., 261. Nor when it is parol; Buchannonr. Carolin, 1 Brev., 185; State v. Borden, 1 Bay., 484; Faber v. Bald rick, 8 Brev., 350; 2 Bay., 267; Eck-fort v. Escuday, 1 Mills, 69. In 1 Mills, 143, written evidence of this nature was refused. In Durant v. Ashmore, 2 Rich., 194, the testimony was locked up; this case, therefore, is not in point. In most of the cases quoted in support of the motion, the testimony was not after discovered. Neither Leibuitz v. Brown, 3 M’C., 313, nor the case from Bailey, is applicable here; nor are the cases from equity. We claim here to be judged by different rules. Vide, 6 Comyn’s Digest, 227; letter R., for the English authorities cited.
    Patterson, lor the motion.
    The verdict in this case rests entirely on circumstantial evidence, and we insist that the facts from which the jury presumed that the plaintiff’s testator had loaned to, or advanced for, the defendant, $2475, do not warrant that conclusion, taken separately or collectively. It is a fact that Riley paid over that amount to the plaintiff in execution. It is equally true that the execution book does not show that the sheriff either received or paid over that amount. It is also a fact, that these persons had the utmost confidence in each other, and it is true the defendant has not got Riley’s receipt for the amount; nor had Riley the defendant’s acknowledgement that the payment was in fact a loan to the latter. These are the principal facts on which the jury came to the conclusion that the money was loaned by the testator to the defendant: and it is against that conclusion we protest. A presumption is defined to be an inference as to the existence of one fact, from the existence of some other fact, proved or admitted; 2 Starkie, 279. And what we urge is, that the facts proved do not authorize the inference that there was a loan. The fact in issue must be a necessary, or at least a reasonable consequence, from the facts proved; 2 Stark., 688. Now, we say that the fact in issue, viz: that there was a loan, is not a reasonable or necessary consequence from the facts proved. All presumptions are founded in experience; 2 Starkie, 688. Many presumptions are derived from the course and habit of transacting business in a trade or office; 2 Starkie, 189. Now, what is our experience in relation to this subject? What is the course and habit of the sheriff’s office? Is it the habit of that officer to advance money for defendants in execution? It was the duty of the sheriff to collect the money and pay it over to the plaintiff in execution; and the presumption of law is, that he discharged that duty. A presumption will stand good until the contrary appears. Slabit presumplio donee probitur in contrarium. But let us annalize the facts proved, by which we can better appreciate the inference reasonably to be drawn from them collectively. The sheriff paid over the money to the plaintiff in execution. Now, the reasonable inference from that factis, that he paid over no more than he received, or collected from the defendant. Such is the course and habit of the office, and to suppose, or to infer, or to presume that he advanced his own money, would be a presumption contrary to the course and habit of the office. To infer that the sheriff advanced the $2475 out of his own pocket for the defendant, without taking any security for, or evidence of the debt, is a presumption contrary to general experience. It is not usual for men to pay money unless they owe it; or to loan money without taking some evidence of the loan. When the sheriff paid over the money, he made no entry of it in the execution book, and such entries are usually made by sheriffs for their own protection; nor did the sheriff make any entry of having received the money of the defendant, and such entries arc usually made by sheriffs for the protection of defendants in execution. And what does that prove? Nothing more than this: that the sheriff was not in his office either when he received, or when he paid the money. If he certainly neglected to make an entry for his own protection, is it unreasonable to presume that he neglected to make an entry which would have protected the defendant? Ifthiswasinfacta loan, as is alleged, is it not extraordinary that the sheriff’ made no memorandum to that effect, which he could so easily have done, and which would be some evidence, though not conclusive. But the parties had unlimited confidence in each other. That fact proves as much for the defendant as the plaintiff. If the plaintiff were asked, why did not your testator, if he actually advanced the money, procure some evidence of the loan? The answer would be: I suppose he had such confidence in th£ defendant, that it was unnecessary. On the other hand, if the defendant were asked, why did you not, when you paid the money to the sheriff, as you say you did, take a receipt? The answer would doubtless be, I had such confidence in Riley, that I was certain he would enter it in his book, as he said he would when he went to his office; I deemed such precaution unnecessary, and I did not know that the entry had not been made till after his death. These are conflicting presumptions, and that in favor of the defendant is the most reasonable. Is it not more usual for defendants to pay money to sheriffs on executions without taking receipts, than it is for sheriffs to advance money for defendants? Judging from my own experience, (and every person must decide on his own experience,) it is; and we respectfully submit that the Court ought to have charged the jury accordingly. But was there no positive evidence in the case? We regard the evidence of Mr. Aldrich as a direct and express admission by the testator, that the money was actually received by him from the defendant, and we submit with all becoming deference, that the Court ought so to have charged the jury. This case might be submitted on a single proposition, viz: whenever a sheriff', an attorney, or a constable, pays over money to a plaintiff’, the presumption of law is, in the absence of positive, or at least reasonable proof to the contrary, that the money was received from the defendant. To illustrate the truth of this proposition, it is only necessary to look at the practical effect of the converse. The mere delivery of money by one to another, or of a blank check, or the transfer of stock unexplained, is presumptive evidence of the payment of an antecedent debt, and not of a loan. This proposition is laid dbwn in 1 Greenleaf, sec. 38; 2 Greenleaf, sec. 112; 2 Phillips, 121; 3 Starkie, 1090, Metcalf’s ed.tion, (and various cases referred to) in nearly the same words. Best on Presumptions of Law and Fact; 176 Law Library, No. 139, being the No. for January, 1845. In the case of Welch v. Seaborn, 2 Eng. Com. L. Rep., 473, which is one of the cases referred to by the elementary writer, Lord Ellenborough said: the presumption of law was, that money when paid, is paid in liquidation of an antece-c^pnt debt. In the case of Pearce v. Davis, 1 Moody & Malkin, 365, it was held, that the mere circumstance of the plaintiff having drawn a cheque in favor of the defendant, is not evidence of a loan.
   Withers J.

delivered the opinion of the Court.

It is not disputed, that where the proof is no more than that the sheriff has paid, on an execution, to the plaintiff or to his attorney, a certain sum of money, the reasonable inference or presumption of fact should be, that he has derived the means of payment from the party who is liable on the execution. But this is not a presumption incapable of explanation, not one juris et de jure; and hence where opposing facts are adduced, as they were in this case, it is the proper function of the jury to settle the dispute. Let any man set himself up as an arbiter of the fact presented by the case as made upon the circuit, and will he be able to affirm it as “clear and conclusive,” as an “irresistible presumption,” that Brown paid the sum in question, and that Riley, the sheriff, did not advance it? It does not appear that any property of the defendant had been sold by the sheriff, or even levied upon, and in fact the rule (as represented in the report) upon the sheriff, charged the' he “had failed to make the money on the execution against the defendant.” Besides this, the jury had other facts before them resisting the inference or presumption, which, it has been admitted, would arise upon the naked proof of a payment by the sheriff as for example, that a rule had then very recently been made absolute against the sheriff, that Brown and Riley were intimate and confidential friends; that when $ 1280 were paid in July, 1841, Brown had taken care to secure evidence of that, (it being stated, and I understood, conceded here, that the payment was made through an attorney, or third person, and a receipt taken,) and that Brown had said, after Riley’s death, his creditors had dealt uniairly with his estate in some transactions, but he would take no advantage of Riley’s estate, though there had been matters between him and Riley known only to themselves. To what, the jury might well inquire, did this observation relate, except to the very item in question, to wit, the sum of #2475? In some respect, Brown certainly meant to say, he had Riley’s estate in hit power. Every item in contest between Brown and the executor of Riley, except the one now in question, is said to have been satisfactorily adjusted on the trial, (as I suppose on adequate proof,) and why might not the jury construe Brown’s remark to be applicable to that for which they rendered their verdict? These remarks are made to show that there was a case fairly made for the intervention of the jury, anddf so, the only question remaining, is, whether they were forestalled or misled by any remark of the presiding Judge. So far as appears from the report, the defendant has no foundation for complaint on this score. The whole question, it is said, was left to the jury under the evidence, with the remark, that Mr. Aldrich’s statement was strong for the defendant, and ought in most cases to be conclusive, and while the Judge intimated no doubt of his own, he told the jury the testimony of the plaintiff had introduced doubts (and this Court think it did) which were resolvable by them. If the plaintiff’s testimony was admissible at all, it. was because there was a point for the jury; for it seems obvious, that if the presumption was so stringent and conclusive for the defendant as to belong to the class that are irrebutable, no testimony against it ought to have been allowe l. That Riley took no acknowledgement of indebtedness from Brown, is well enough neutralized by the fact on the other hand, that Brown, if he paid the money, took no acknow-ledgement from Riley, either on the execution or the execution book, nor any receipt for his own custody; and it might be argued, that Riley’s negligence is more explicable than the defendant’s, on the ground that he had against the latter the standing security of an execution open. Such are the views of a majority of this Court upon the grounds embraced in the regular notice of appeal. It is understood that the Court is unanimous against the defendant, upon the ground of appeal resting on the testimony said to have been discovered since the trial.

The motion is refused.

Evans J., and Frost J., concurred.

Richardson J.,

dissenting. We have jnst decided (Milledge and Broadwaters,) that where the jury has drawn from the facts a plainly erroneous verdict, a new trial will be ordered. And we have to decide in this case, whether the same shall not be done, when the verdict for the plaintiff rests upon equivocal evidence, and this infracts a plain, practical and essential inference from the fundamental part of the plaintiff’s case. I mean the receipt for $2475. For the Law of Presumptions, see Stephen’s N. P., 1554, and Greenleaf, 18. The first inquiry is, therefore, what is the inference to be drawn from this receipt? It is in these words, to wit:

Jacob B. Smith, Executor, v. Jabez G. Brown.

1 Rec’d, 19th April, 1841, from G. > O. Riley, Sheriff, the sum of two ) thousand dollars, and also four hundred and seventy-five dollars—being $2475 in part of this case.” [Signed] E. Bellinger, Plaintiff’s Attorney.

Does this receipt imply that the $2475 were of the money of the defendant, Brown, or of Riley’s money? The legal, practical, and proper inference, pervades the whole case, and gives the principle of all just reasoning. No one can question, that in collecting money on an execution, and paying it over, the sherifl is an officer acting as the agent of both defendant and plaintiff. These are plain facts. It follows, that such collecting and paying do, and must infer, that the sheriff has collected the money of the defendant under the execution, and has not advanced the sheriff’s own money, because the former was his official undertaking, and to pay out of his own pocket was not his part. This inference is as clear as the analogous inference, that when Riley delivered the money to the plaintiff, he did not make the plaintiff his debtor, but paid him his own collected money; because, in both paying and collecting, the sheriff is equally an agent—not principal. This is the primary and undoubted position, and legal principle of the case before us; supposing it to turn upon the receipt alone. The sheriff, in this respect, is like other agents, attorneys or clerks, who act for their principals. But, in favor of no such agent can it be inferred, that he gratuitously advances his own money, and renders his principal his debtor. Why? simply because he acts only for his principal. In paying money, the sheriff has always this favorable presumption, that he has done his duty, but not more than his duty. Nor can he, by his gratuitous acts, force either party to become his debtor—and as little the defend ant as the plaintiff, of course. The claim of one man to render another, by his own acts, his debtor, was repudiated by this Court in the recent case of Mathews v. Colburn. This is adjudged law, and will have some bearing on [his case hereafter; for the present I return to the general presumption.

It follows irresistibly, that when the sheriff paid i he plaintiff, the presumption, prima facie, is, that he paid with defendant's money, and not with his own. The judicial presumption being settled, this principle of law governs. Statute presurnplio donee probitur in contrarium. Until, therefore, such contrary be proved, the legal presumption is, that Riley paid the plaintiff with defendant’s money. Upon the receipt alone, there can be no other legal construction, and the action would fail. Now, then, secondly, has the contrary been shown in this easel We turn to the facts proved, always bearing in mind that they are offered to displace a presumption of law. Next, to the receipt of 19th April, ’41, already considered, comes the fact, that the sheriff’s books have been searched, and are found blank upon the subject. This negative fact increases the presumption, because it shows that Riley did not hold the defendant to be his debtor; the money had been received and paid away; and the thing ended accordingly. Riley has not debited Brown at all. This negative becomes stronger still, when we find there is the same blank as to the $1280, acknowledged to have been actually paid Riley by the defendant, but delivered to the plaintiff bv Riley. Again, then, as before the thing ended, and there is equally no entry. There is an obvious consistency in this construction, which places both those payments in equal law, no entry at all being found in the sheriff’s books. The third fact is, that the sheriff was ruled, <fcc., but never sold defendant’s property, nor, to appearance, urged him to pay; but, soon after, the $2475 was paid to plaintiff by the sheriff, in primo. How is the first general presumption, that it was paid with defendants money, rebutted by either the rule of Court, or the actual payment of the money by Riley? Riley still stood as all other sheriffs in like cases, and as he himself stands, as to the payment of the $1280; they ave both of Brown’s money, prima facie. The fourth fact is, that Brown and Riley were very intimate; and Brown professed he would take no advantage of Riley’s death, &c. Assuredly, nothing can be made of these facts but by suspicious or unjust imaginations of dishonesty in Brown, which would be a strange and most unjudicial way of deciding a civil action; (see the case of Smets v. Plunket.) Fifthly, comes the statement of Mr. Aldrich, which sets forth three payments, each in the same terms, i. e., ‘‘then paid,” $2149; “then paid,” $2475; “then paid,” $1000. And two of these have turned out t o be payments made with the defendant’s own money, besides the one of $1280 since made by Brown, and through Riley to the plaintiff. But the second of these payments, to wit, that of $2475, has been ascribed to Riley, and been given by the verdict; no doubt in virtue of the receipt, and under the five facts which I have before narrated, and shown to be of no force to rebut the legal presumption, that no agent can assume, that he has paid, out of his own pocket, the debt of his principal, but must prove the fact before he can recover against such principal. But, I ask, if the converse of this rule has not been acted upon in this case, and Brown mulcted in the $2475, because he did not prove that sum to be of his money; whereas, it was Brown’s money, till proved to be Riley’s.

Reflect for a moment upon the facts that have led the jury to infract the legal presumption from the facts. 1. The sheriff’s books presented nothing. 2. The sheriff was ruled, and then paid the $2475. 3. He and Brown were great friends. 4. Aldrich made a statement of Brown’s debt. And 5. Brown said he would take no advantage of Riley’s death: ergo says the verdict, he did take advantage. Do such circumstances justify a verdict, which, upon the receipt alone, would have been a breach of the plainest law? Is it not then plain that the verdict has been given for Riley, because Brown did not prove that Riley was not the owner of his, Brown’s, money? For such reasons, and feeling a decided conviction that the verdict has infracted, settled and every-day principles of the laws of principal and agent, and will form a dangerous precedent if ever upheld by a full majority of this Court, so as to constitute a law for all such cases, I would refer the case again to a jury. Take the common case of a travelling agent to collect accounts, and pay away the money—shall such an agent maintain actions against his principal, upon the receipts he takes, for money paid to the creditors of his principal, by simply assuming that he paid the debts gratuitously with his own money, and leaving it for the principal to disprove that assumption if he can? And is not such the whole ground of this action in favor of the late sheriff, Riley, against Brown? If my first legal presumption, that Brown must be considered the owner, prima facie, be correct, it is so: for Brown having failed to prove that Riley was not the owner of his, Brown’s, money, Riley gets it by the verdict. There is no proof whatever that it was Riley’s money; but the legal presumption being in favor of Brown, has not the principle been practically perverted and si rained to the use of Riley, his agent. And, in exchange for that, Brown receives the burthen of disproving ’twas Riley’s money, instead of Riley disproving ’twas Brown’s money. And this is done in favor of whom? It is done in favor of a sheriff, who, of all other agents, is most emphatically bound to collect money from the defendant in the execution, and from no other; and he must, therefore, be more than usually presumed to have received the money of him; and which official agent is prohibited from buying up, and of course enjoined against gratuitously tampering or meddling with judgments. It is, in fact, a great and wise principle, that forbids all agents from speculating in the rights of their principles; and sheriffs are not unsuspected. I do not mean to say that a sheriff may noi lend money to a defendant under execution, or pay the money gratuitously out of his own funds, as supposed in this case. But I do say, that if he does so gratuitously pay, he cannot recover, unless he makes the fact plain. And that, not only all the presumptions of law are against the assumption of such payment by a sheriff, but also according to the case of Mathews v. Colburn, the assent of the defendant ought first to be shown, either expressed or implied. Where is there any proof of assent stronger than that which was not upheld by this Court in Mathews v. Colburn, and a new trial granted to the detendant, for whom Mathews alleged he had paid the money, and he had paid it. But had Colburn assented? was the question. Upon this head of assent, I would again say, it especially applies, in cases of this influential, popular and confidential, but often enough managing officer, the sheriff of the district, when he charges, that he paid a judgment out of his own pocket. Of course my reasoning is general, and the object is, to prevent imposition or injustice, by caution on this head. Men pressed by executions, make many confidential arrangements, counter-indemnities, and so on, with sheriffs. But the sheriff should not be allowed to carry off the verdict, upon little else than the customary receipt, that he paid the money to the plaintiff. His case should first be made plain: and where is the evidence? Upon the whole case, therefore, my opinion is, that there ought to be a new trial, on the second ground of appeal, i. e., upon the clear legal presumption that the $2475 were of Brown’s money, and not of Riley’s. This virtually includes also the second ground, that the evidence does not sufficiently support the verdict: and I file my dissent for the reasons before noticed, i. e., to limit, if possible, agents cases springing out of their own acts; and the receipts taken by themselves in disbursing the moneys of their principals. I would have a judicial estoppel to this dangerous practice.

Wardlaw J. concurred in the opinion, that there should be a new trial.  