#### S. T. CARSON v. NATIONAL LIFE INSURANCE COMPANY and GEORGE BRILEY.

(Filed 11 March, 1914.)

1. Appeal and Error — Second Appeal — Former Decision.

Upon a second appeal, the Supreme Court will not rehear and reconsider the questions determined on the former appeal.

2. New Trial — Newly Discovered Evidence — Requisites.

A motion for a new trial for newly discovered evidence will not be granted when it appears that it was accessible at the trial to the appellant by the exercise of proper diligence; that it was cumulative, and that a new trial would not probably produce a different result.

Appeal by plaintiff from Daniels, J., at January-Term, 1914,. of Pitt. _ ■ ...

Julius Brown and 8. I. Everett for plaintiff.

Albion Dunn and Harry STcinner for defendant.

"Walker, J.

It appears from the record that this appeal was taken for the purpose really of reviewing the former decision *136of this Court in tbe same case. 161 N. C., 441. Tbe facts are substantially identical and tbe points raised by tbe exceptions of plaintiff, wbo appealed, are so closely analogous as not to be distinguishable. When tbis is tbe case, we follow tbe former decision, wbicb cannot be thus reviewed by a second appeal. Bank v. Furniture Co., 120 N. C., 475. Tbe matters now presented were then carefully considered and decided upon full deliberation, and we abide by tbe conclusion reached at that time. On the second trial below, tbe learned judge followed strictly tbe principles wbicb we bad said should govern tbe case, and we find no error in any of bis rulings.

Tbe motion for a new trial, upon tbe ground of newly dis- ' covered testimony, is denied, for tbe reason that plaintiff has not brought bis application within tbe terms of tbe rule applicable to such cases. Tbe proposed'testimony is cumulative, and it does not appear to us probable that it would cause a reversal of tbe verdict if a new trial were granted. There is evidence to show that it was accessible to plaintiff by tbe exercise of proper diligence. For these reasons, and others, wbicb might be stated, tbe application does not impress us so favorably as to induce tbe exercise of our sound discretion in plaintiff’s behalf. Johnson v. R. R., 163 N. C., 431, and Clark’s Code (3 Ed.), pp. 518, 519, and cases there noted. Plaintiff has bad two chances, and a third, under our ruling as to tbe law, it seems, would be of no avail to him.

No error.