
    James M. Slater et al., plaintiffs in error, vs. Elizabeth A. Manes, defendant in error.
    1. "When grounds for new trial .are once ruled insufficient by the supreme court, that judgment will not be reversed on a subsequent writ of error in the same case, sued out on the very same motion for new trial, with a new • ground added by way of amendment to the original motion.
    2. After judgment.on writ of error reversing the grant of a new trial, can the motion be amended in the court'below, even before the remittitzir is entered ? Qucere /
    
    3. Newly discovered evidence that most probably might have been discovered earlier, with reasonable diligence, is not ground for new trial — certainly not, if first brought forward after final judgment disposing of the whole case on writ of error.
    New trial. Practice in the Supreme Court. Practice in the Superior Court. Before Judge Schley. Bulloch Superior Court. October Term, 1874.
    After the judgment of the supreme court was rendered in the casé of Manes vs. Slater et al., 48 Georgia Reports, 589,t but before it was made the judgment of .the court below, Slater et al. renewed their motion for a new trial upon the same grounds that had been passed on by the supreme court, with the additional ground, added by amendment, of newly discovered evidence. This testimony was to the effect that Samuel Slater had possession of the property in controversy prior to the execution of the deed conveying the same to Ann Slater, with remainder to her children by her husband, William Slater; and that she held the land under such deed at the time she and her husband conveyed to Elmore Manes.
    This ground of the motion was supported by the usual affidavits. Counsel for plaintiff stated in his affidavit that neither he nor plaintiffs resided in Bulloch county. James M. Slater, one of the plaintiffs, also made affidavit to the effect that the evidence was newly discovered, and that his two co-plaintiffs are, and were at the time of the trial, non-residents of Bulloch county.
    Beyond the fact of non-résidence, no excuse for the failure to discover the testimony.at an earlier date was given.
    The motion was overruled, and plaintiffs excepted.
    
      James H. Hunter; W: C. McCall, for plaintiffs in error.
    Rueus E. Lester; A. H. Smith for defendant.
   Bleckley, Judge.

As to the grounds of new trial pronounced here insufficient on the former writ of error, they are res adjudieata. No second trial has been had in the court below, and these grounds come back to us with no new action or new light upon them.

It may be questioned whether the motion for new trial was amendable by adding, at- that stage, the ground of newly discovered evidence: Code, section 3716. Perhaps it was; but if so, the new hearing ought to have been confined to that ground alone, as if it were a separate extraordinary motion: Section 3721.

And that ground we hold insufficient, on the showing contained in the record. The new facts were not of a concealed or obscure nature, and they were discovered so soon after their absence had been remarked by this court that there is a strong probability that full diligence in searching for them would have met an earlier reward. The suit was by members of the Slater family, and the possession said to have been recently discovered was by other members of it. In so far as that possession related to the question of the plaintiffs’ title, it should have been inquired into before the suit was brought — certainly before it was tried. But the record discloses no inquiry earlier than-the loss of the case on the former writ of error in this court. Diligence was wanting; and diligence was required : 41- Georgia, 426.

Judgment affirmed.  