Opinion foj

BeubenB. Beeves as administrator of tbe estate of Levi Beeves, deceased, brought his action of assumpsit against the defendants Boyal and Jackson, in the district court of Davis county, to the April term, 1848. The plaintiff declared upon a joint and several note, payable six months after date, calling for one hundred and ten dollars, and seventy cents. The note bears date the 22d day off August A. D. 1840. The defendants set up fraud and 'circumvention on the part of plaintiff in obtaining tbe note. The cause was tried at April term, 1848, and a verdict rendered for the plaintiff for one hundred and eighteen dollars and sixty two cents. IJpon the recovery of the verdict, the defendants moved the court to grant a new trial. On hearing, the verdict was set aside and a new trial granted. This action of the court is here assigned as error.

The record shows that the motion for a new trial was urged on two grounds, to wit: newly discovered evidence, and error in the instructions of the court, so as to mislead the jury in making up their verdict.

The affidavit of Boyáis, one of the defendants was filed, on which he stated that since the trial he was informed one Denison, who was then absent, would testify that said plaintiff Beuben B. Beeves stated to witness, “that they (meaning plaintiff and Green Beeves) had a hard time to get old Boyal into it (meaning the note sued.”)

*452The affiant does not pretend, in the affidavit, to disclose the name of the person who informed him of what Denison would swear, nor does he aver his belief in the statement made. The affidavit does not show that, in the use of proper diligence, the testimony of Denison could not have been procured on the trial.

So vague and indefinite are the allegations of fact contained in the affidavit, that of itself it does not present sufficient ground for granting a new trial. Indeed it does not appear to have been considered by the judge who tried the cause, as furnishing the reason upon which he acted in granting the motion.

Where a party seeks to procure a new trial, on the ground of newly discovered evidence, he should give the court the best evidence possible of the truth of the allegations, that such evidence has been discovered, where it is, and that it can be had at the proper time. It is also necessary to show that the evidence is material to the issue between the parties and is not cumulative merely • and further that the failure to produce it on the trial, was not chargeable to his own negligence. Shlenker v. Risley 3 Scam. 486. In this case we think, the doctrine is truly set forth. But enough has been said upon this point, as the action of the district court in granting the new trial appears by the bill of exceptions to have been predicated upon the misdirection of the judge in charging the •jury.

It appears by the bill of exceptions, that the judge ■charged the jury on the question of fraud in the procurement of the note, upon which the suit was instituted. In his charge as at first given, there is manifest error. Alter having charged fully upon the question as raised by the pleading, and the facts adduced in evidence, upon being requested by the defendant’s counsel to give a different instruction as to the law, he expressed himself as dissatisfied with what had been given, and proceeded to give those asked. The instruction last given is correct.

The defendant’s counsel urged as a reason for granting *453a new trial, that the jury was confused and misled, as to the law by the charge of the court, as given; that the instructions were erroneous, contradictory, and calculated to perplex the jury.

The bill of exceptions then in the language of the court, proceeds in setting forth, that “ the court being of this opinion and thinking that the suing on the note was a ratification in law, (of the agents acts) and that the jury ought to have been so expressly and clearly charged, and thinking that the case went to them under such confused instructions that they might be misled, &c., granted the new trial.”

This record exhibits to us nothing that calls for this court to interfere with the ruling of the district court. It is true that the bill of exceptions shows that, after much discussion of the questions involved in the trial, the court admitted its own error and corrected itself. But it also shows that the court in the exercise of a sound discretion with a full knowledge of all the circumstances, was of the opinion that the jury were confused and misled by the charge. This is not a case in which, as good reason for a new trial, it is alleged on hehalf of a losing party, that the jury were misled or confused by the instructions of the court, and the motion overruled. But, where the court, in express terms, admits the truth of the allegations made as the ground of the motion, and granted a new trial, we cannot interfere.

The court must be presumed to have been fully possessed of the circumstances of the case, and to have acted with a sound discretion in correcting, in a speedy and proper manner, its own erroneous proceedure.

The order of the district court granting a new trial is affirmed.

Judgment affirmed.