
    DAVID HUGHES, vs. D. and M. M’GEE.
    
      On a writ of error to reverse a judgment of the Mercer cir-cwit court.
    
    13 June, 1818.
    
    Ante, pa. 28.
   The Chief Justice

delivered the opinion of the court.

On a reconsideration of this case we are of opinion that the former judgment of this court, so far as it directed a ne«v trial peremptorily to be had in the court below, is incorrect. We still think, bow'ever, that the affidavit upon which the second application was made, connected with the state of the evidence given on the trial, furnished prima facie good cause for a new trial, and that the court erred in not hearing the application. But, as it is possible, if the court had heard the application, that the other party might have been able to have repelled the ground made out by the affidavit of the applicant, and as it wmuld have been competent to have done so, we are of opinion that instead of directing a new trial peremptorily to be awarded, we should have directed the circuit court to hear the second application, and to award or not award a new trial, as the case may require. The former judgment of this court, therefore, so far as it peremptorily directs a new trial to be had in the circuit court, must be set aside and annulled, and stand unaltered and affirmed' as to the residue, and the cause must be remanded that the circuit court may hear and decide on the second application for a new trial.  