1. The failure to file a claim to property which has been levied on will not estop the true owner from asserting his title by an action of trover against the purchaser at the sale under the execution, such owner having done nothing that had a tendency to mislead the purchaser as to the owner’s relation to the property and the title. McLennan v. Graham, 106 Ga. 211, and cases cited on page 214. It was therefore not error to refuse to give in charge to the jury a contention of one of the parties, at variance with the principle of law announced in the foregoing.
2. Newly discovered evidence which is merely impeaching in character is not ground for a new trial. Hardy v. State, 117 Ga. 40.
3. The evidence amply warranted a verdict for the plaintiff, and it was not error to refuse a new trial. Judgment affirmed.
All the Justices concur. Bail-trover. Before Judge Calhoun. City court of Atlanta. January 16, 1904. James L. Key, Aldine Chambers, and William M. Smith, for plaintiff in error.