¶1By the Court.
¶2delivering the opinion.
¶3We should not have felt constrained to send this case back had the Judge granted a new trial. Neither do we feel forced to reverse him for refusing it. It is difficult to say that the evidance decidedly preponderates on either side.
¶4As to the conversation between the plaintiff and witness, William Hamilton, it should not have been admitted. But it amounts to nothing. The point of it is, that Ashley B. Hamilton, on his way to Lee county when he sold the horse, 'asked the witness if he would advise him to take $150 00 for the horse, he having been holding him at a higher price. But it is in proof, that previous to this time, Ashley B. Ham*971ilton had been at the house of Williams when he was absent, and stated that he would take $150 00 for the horse, but that he should not come back there to sell him.
¶5Then, as to the newly-discovered evidence. The defense-set up to the note is, total failure of consideration, because the horse had died within thirty-six hours after he was sold, of blind staggers. By Smith the defendant will be able to: prove that he saw the horse in the latter part of the summer, or beginning of the fall, of the year before he was sold, in November. He thought him then unsound, and called the attention of the plaintiff to the fact.
¶6But Smith states nothing as to the nature of the unsoundness. It is admitted that the. horse had a cough .from distemper. This may have been the unsoundness noticed by Smith and others. To make the evidence pertinent and material, it ought affirmatively to appear that this unsoundness was connected with the disease of which the horse died.. There may have been a trick practiced upon Williams. T fear there was. The proof, however, fails to establish it.