*151Response of the Court, to Petition for Rehearing, by
Judge HurtOverruling petition.
The petition for a rehearing, herein, is based, upon the fact, that the bill of evidence, made at the second trial was mislaid, and was not with the record, when it was considered, and the decision arrived at, and the court, for that reason, could not consider the cross-appeal of Salyers, who was the plaintiff, below. It was made to satisfactorily appear, that such bill of evidence had originally constituted .a portion of the record, and was not therein, at the time, the cause 'was considered, without any fault of the appellant, Salyers, and has been restored to the record. As recited, in the opinion, the cross-appeal rests upon the contention,-that the court erred in setting aside the verdict and judgment, rendered at the second trial,-and granting a hew trial. Such of the grounds of objection to the order of the court granting the new trial, as could be considered upon the record before us, at the former consideration, were then disposed of. There remained only to be considered of the grounds 'for setting aside the verdict and judgment, the contentions,' (1) that the verdict was contrary to the weight of the evidence, (2) was not sustained by the evidence, and (3) newly discovered evidence. After a careful examination of the bill of evidence, it is concluded from a consideration of all the facts of the case, that the court did not abuse its discretion, in granting the new trial. The petition is therefore overruled.