
    CHAMBERS, vs. CHAMBERS' adm'r.
    
      On appeal.
    
    
      7 June, 1820.
   Judge Owsley

delivered the opinion of the court.

This is an appeal from a judgment recovered by the appellee in an action for the trover and conversion of certain promissory notes, brought by him in the circuit court against the appellant.

Where there is opposing evidence the court will not grant a new trial, nor will they grant it because of the discovery of evidence touching a fact which was before jury.

The assignment of errors questions the sufficiency of the declaration, and contests the decision of that court in overruling the appellant’s motion for a new trial.

The precise objection to the declaration, intended to be relied on, is not suggested in the assignment of errors; and we have been unable to perceive any to which it is liable. The declaration is in the usual form, and contains every allegation, in appropriate form, essential to the appellee’s right of action. And with respect to the appellant’s motion for a new trial, we are of opinion the decision of the circuit court is correct.

The motion was made on the grounds of the verdict being against evidence, and for a discovery of new evidence.

It cannot, with any propriety, be said, that the verdict is contrary to evidence. The appellee introduced evidence conducing to prove every fact essential to his right to recover; and although opposing evidence was introduced by the appellant, it is of a character making its weight and credibility peculiarly proper for the consideration and decision of the jury. And with respect to the discovery, it need only be remarked, that the evidence alledged to have been discovered, relates to a matter which had been contested on the trial, and to which proof had been adduced before the jury, and as such, formed no sufficient grounds for a new trial, as was held by this court in the case of Wells against Phelps, 4 Bibb, 563.

The judgment must be affirmed with cost and damages.  