This is an appeal from the denial of a new trial, on the affidavit of the defendant, stating the late discovery of new and material evidence, which reasonable diligence could not enable him to discover before the trial. This evidence is expected to be drawn from the conscience of the plaintiff, and the testimony of P. Ewing.

By the plaintiff, the defendant expects to prove that the goods, the price of which is sought to be recovered, were by him sold to *84J. H. Ficklin, and not to Ficklin & M'Micken; that the account was made out against Ficklin alone, and that the plaintiff never thought of making the defendant liable, till after Ficklin’s death; and that the defendant discovered this, in a conversation with the plaintiff's counsel, who read him part of a letter from R. Lashaw, one of the plaintiff's partners.

The defendant does not inform the court, in his affidavit, of any thing which P. Ewing can prove.

The plaintiff's testimony can only be obtained in the mode pointed out by law, i. e. by filing interrogatories in the answer, and obtaining the judge's order.

I think the judgment of the district court ought to be affirmed with costs.

I concur in this opinion. It is in my view so evidently conformable to law, and sound principles of practice in courts of justice, as to require no additional reasons to prove its correctness.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.