Under the peculiar circumstances of this case, the assumption of liability by tlie defendant being the leading point at issue, the court erred in refusing to grant a new trial upon the ground of newly discovered evidence. The matters brought to the attention of the court, while in a sense impeaching, are also susceptible of being considered as substantive, proof, probably leading to a different result on another trial. Besides, the matter referred lo went to the fairness of the trial itself.

Judgment reversed.