delivered the opinion of the court.

The only question made in this case by the assignment of errors, involves an enquiry into the decision of the circuit court in refusing to award a new trial.

The new trial was asked for on the ground of a discovery of new evidence. But as the evidence alledged to have been discovered tends barely to discredit witnesses sworn on the trial, and especially as it appears from the affidavit of Clarke, the same matter which the discovered witness is expected to prove, might have been proven by other witnesses, the court decided correctly in refusing a new trial.

The judgment must be affirmed with cost and damages upon the damages recovered by Rutledge in the circuit court.