Opinion of the Court by

Matthews sued Smith before a justice of the peace on an account and recovered $6, 12&. Smith appealed to the circuit court where judgment was again given for Matthews, Smith moved for a new trial and made affidavit that he had discovered new testimony which was material to him. This affidavit was accompanied with the affidavit of the witness discovered, as to what he knew of the matter in controversy. The circuit court overruled the motion and gave judgment from which Smith appealed to this court.

This court is of opinion that the affidavit of the appellant should have contained an averment that he had used due diligence. And we are further of opinion that the testimony of Lynch the newly discovered witness was no wis material. Judgment affirmed.