majority">Per Curiam.

Martin, who was the plaintiff, sued John Foster, William Crawford, Margaret Frazier, and Joseph Hamilton, in replevin, to recover a brick-kiln. Foster was defaulted. The other defendants appeared and answered: 1. By a denial. 2. Property in themselves, etc. The issues were tried by the Court, who found for the plaintiff, and judgment was, accordingly, rendered, etc. The record shows that, at that, the October, term of said Court, in the year 1858, being the term next after the trial and judgment, Crawford and Frazier, two of the defendants, moved for a new trial, on two grounds: 1. That the decision is unsustained by the evidence. 2. That they, the defendants, “ have newly-discovered evidence, material for them, which they-could not, with reasonable diligence, have discovered and produced at the trial.” The latter-assigned cause is sustained by an affidavit, which points out, specifically, the newly-discovered evidence; but the evidence given on the trial is not in the record before us, and we are, therefore, unable to say, whether the new evidence, if allowed on another trial, would produce a different result. Simpson v. Wilson, 6 Ind. 474. Hull v. Kirkpatrick, 4 Ind. 637. The second alleged ground is not, therefore, sufficient cause for a new trial. And the first ground, viz.: “ That the decision is unsustained by the evidence,” is equally unavailing, *371because the evidence, as we have seen, is not before us; and, moreover, that cause can not be assigned after the term , at which the trial was had.

P. L. Walpole and S. W. Robinson, for the appellants.L. Sexton, for the appellee.

The judgment is affirmed, with five per cent, damages, and costs.

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