"'38 · ·FEDERAL.‘REPORTEB.
is set out in the declaiation to show a right of action in favor of plain-
tiffs ow-these bonds. . t 1 ’ ·
t . The demurrer is overruled, with leave for defendant to plead within
one week, if it electsso to do.
A [CHANDLER and another v. Tnomrson and another.
·( Uircuif Court, W D. North. 0a/rolfna. November Term, 1886.)
. 1; Fasun-—SLu.n on MACHlN`ERY—-WRITTEN CONTRACT—EVIDENCE—AGENGY.
In an action for the price of saw-mill machinery manufactured and sold
under a written contract calling for an engine of certain horse-power, and
containing an express warranty that the machinery would do good work, it
cannot be shown, on the part of the defendants, that plaintiffs’ agent fraudu-
lently represented that the machinery which they proposed to buy was of the
character, and had the capacity, to do their work.
2. Evmmnom-Exrnnr Tms*rmoNr—¢MAcmNnar.
A machinist may testify, as an expert, whether the defective work and con-
dition of a steam saw-mill, set up and afterwards examined by him, is due to
defective construction, or want of skill in the management of it.
8. Nnw TRIAL—MOTION 1ron—Nmcmssrrr or- B11.;. or- Excnrrrons.
’ Upon a motion for a new trial in a circuit court of the United States, where
the amount in controversy is not sumcient to admit of a writ of error to the
supreme court, a bill of exceptions is not essential, in order to avail of excep-
tions taken at the trial. The recollection of the court may be aided by aili-
davits and the briefs of counsel.
4. S.um—~JUnons’ Armnxvrrs.
. Upon a motion for a new trial, jurors will not be allowedto explain the
grounds of their verdict.
5. BAME—NEWLY-DIBOOVERED Evmmncn.
A new trial will not be granted on the ground of newly-discovered evidence,
if the evidence relied on is merely cumulative, and if the witness apparently
· might have been produced at the iirst trial.
6. Sana-Iinnorma AneumnN·r—0nJmor1oN.
Remarks of counsel in the course of argument to the jury, claimedto be
improper, should be objected to at the time, and the interposition of the court
invoked, in order to render such misconduct available upon motion for a new
trial. ~
‘ Action for the price of machinery sold. Verdict for plaintids. De-
fendants moved for a new trial.
Davidson do Martin and J. H. Merriman, for defendants. —
Shuford do Jones, for plaintiffs. A
Dick, J. This case was tried before me at Asheville at the regular
term of the court, in May, 1886, and judgment was rendered on a ver-
» dict in favor of the plaintiffs. A motion was made for a new trial at said
term, and was continued for argument and the preparation of briefs by
counsel. Exceptions to the rulings of the court were taken by the counsel
- of the defendants during the trial, but were not formally reduced to writ-
ing, and presented in the court for signing. As the amount in contro-
versy in this action is not sufficient to entitle the defendants to a writ of