By the Court
Lumpkin, J.,delivering the opinion.
This bill is filed to obtain a new trial at law. Three things are necessary to the maintenance of the bill—ignorance of the defense at the time the judgment at law was rendered; diligence on the part of the complainant; and that adequate relief can not be had at law. (Taylor vs. Sullivan, 15 Ga. Rep., 103).
This was an action of trespass, for entering upon the premises of the plaintiff and taking and carrying away, some two hundred bushels of clean wheat, besides some stacks of unthrashed wheat. The first verdict was for the plaintiff; the defendant appealed; and the jury found for the defendant. A new trial was moved for and refused. The case was brought before the Court, and the judgment of the Court below was confirmed.
The complainant bases his application upon the discovery of new testimony, which he thinks would vary the finding. The witnesses are : H. II. Moore and Wm. A. Moore, both of whom reside in South Carolina, but were residing in Gordon county, in this State, when the case was tried. One of them saw him sowing the wheat, or a part of it, and knows that he paid for the cutting of the w’heat. The other was present when the wheat was measured to him, with which he planted the land.
*297The affidavit of these fitnesses is not appended to the bill. It is said by complainant’s counsel that the testimony of these witnesses has been taken, and is filed in the Clerk’s office; but it has not been seen by the opposite counsel. Now, while we do not doubt the fact, it will not do for the Court to predicate its judgment upon it. Besides, the counsel may overrate its importance. This testimony is at best but cumulative. There must have been some testimony to have enabled the plaintiff to recover the first verdict. And the question, and the only question, has been, whose wheat it was? The evidence is necessarily cumulative. The bill should set out what testimony was offered on the former trial: 1st. To show that the newly discovered testimony
was not cumulative; and 2d. That it would vary the verdict if let in. We think, under the circumstances, that we should not be justifiable in awarding a new trial. If the Moores were present when the seed wheat was measured to the plaintiff, and when the wheat was sown and harvested, he must have known it, and he could have subpoenaed them as witnesses, notwithstanding the want of friendly feeling between them.
Let the judgment be affirmed.