#### John S. Harvey et al. v. Daniel P. Collins.

New trial—cumulative evidence. A new trial will not be granted upon newly discovered evidence which is merely cumulative in its character.

Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.

*256This was an action of assumpsit, by Daniel P. Collins against John S. Harvey and Sarah B. Harvey, upon a promissory note, made by the defendants to Isaac McClelland, for the sum of $1519.50, payable six years after date, and assigned by the payee to the plaintiff. The defense was, payments made on the note, at various times. The note itself showed various credits indorsed, but others were claimed. The cause was tried by the court, without a jury, who found for the plaintiff, and rendered judgment in his favor for $606.75.

Mr. Silas L. Bryan, for the appellants.

Messrs. W. & E. L. Stoker, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

The matters in dispute between the parties to this case have relation to payments on the note which is the basis of the action. As respects the controverted items of set-off pleaded, the evidence is conflicting, and treating the finding of the court as we would the verdict of a jury, as the rule is, it must stand.

In support of the motion for a new trial, affidavits of newly discovered evidence were read, but as it amounts to nothing more than cumulative, if produced on another trial it would not be decisive of the case. The rule is well settled, it is not the practice to award a new trial to let in such evidence. Even if admitted on a second trial, it can not be known t' e result would not be the same. Gottschalk v. Hughes, 82 Ill. 484.

There is evidence to sustain the finding of the court, and as there is nothing in the record to warrant a reversal of the judgment, it must be affirmed, which is done.

Judgment affirmed.