
    Johnson, Executor, v. Cox.
    
      Thursday, June 2.
    
    APPEAL from the Warren Court of Common Pleas.
   Perkins, J.

Cox filed a claim against the estate of Thomas Johnson, deceased. It was not admitted, and was placed upon the issue docket. James Johnson, the executor of the last will of Thomas, appeared as defendant. He filed an offset, &c.

There was a trial. The Court granted a new trial upon an affidavit of surprise at the testimony of a witness, newly discovered evidence, &c.

The new trial was had. Cox obtained a verdict and judgment.

Johnson appeals. The evidence is upon the record. We cannot say it does not sustain the verdict and judgment.

It is urged that the Court erred in granting the new trial. The Supreme Court will not reverse a judgment because a new trial was granted, except in a very plain case of error. Ind. Dig. p. 418.

R. A. Chandler, for the appellant.

B. F. Gregory and J Harper, for the appellee.

The Court refused to permit the defendant to testify as a witness on his own motion. This was not error.

The Court suppressed three answers of Deborah Johnson, the widow of Thomas, deceased. See Jack v. Hussey, 8 Ind. R. 180. Besides, it does not appear that the suppressed answers could have materially influenced the verdict.

The Court refused to permit one Stufflebeam to be impeached by contradiction. It does not appear that a foundation for such impeachment was laid. We see no error that should reverse the judgment.

The judgment is affirmed with 5 per cent, damages and costs.  