The motion for new trial -contains various grounds, but none of them were insisted upon before this court except those relating to newly discovered evidence and to the insufficiency' of the evidence to support the verdict. It is complained that Judge Hall, in acting upon the newly discovered evidence, pursued a practice not warranted by law, hearing counter-affidavits from the opposite party, and receiving certain documentary evidence to contradict and discredit one of the witnesses whose affidavit was produced by the movant. It is complained, also, that the judge refused to postpone the hearing to afford time for due preparation to meet and reply to this counter-showing.
1. The decision of these questions is rendered unnecessary by the condition in which we find the record, together with the abandonment'by counsel, in the argument, of all the alleged newly discovered evidence except that of Roberts, the witness above referred to. The motion for new trial, as it comes to us, does not include the discovery of Roberts’ evidence within the grounds of the motion. The newly discovered evidence on which the motion is based, is alone that of Weaver and Wilson, as will be seen by reference to the reporter’s statement. The abandonment, therefore, of all the newly discovered evidence except that of Roberts, puts the whole subject of newly discover’d evidence out of'the case, and we so treat it. It would, of course, be idle to decide anything in respect to the evidence of Roberts, since it is not alleged as the whole or any part of any ground for the new trial claimed: 44 Georgia, 620; 50 Ibid., 150. Doubtless if acted upon by Judge Hall, it was from oversight, or else the record before us is, by some accident, not a true transcript from the original. We, however, must be governed by it.
2. The verdict is not in conflict with the evidence, nor is there a want of evidence to justify it, either on the subject of title in the plaintiff or on the amount of the recovery, the two points on which it was assailed in argument. There was *525positive testimony that the property belonged to the plaintiff, and no very strong evidence to the contrary. The jury, in the light of the explanations which were before them, probably reconciled it all and made it consistent ■ but if they did not and could not, they were the proper arbiters of any conflict that existed. In respect to the damages found, the hire allowed must have amounted to little, if any, more than the lowest estimate put upon it by any of the witnesses; to carry it to the highest, the verdict might have been increased several hundred dollars.
There was no error in refusing a new trial, and the judgment is affirmed.