delivered the opiniou of the court.
The question in this case is whether the defendant in the court below was entitled under the circumstances of the case to a new trial. He had made an application for a continuance for the want of testimony. It appears from the record that his application was overruled and he was forced into a trial on the ground that he could prove the same fact by another witness, and that it was proven by the deposition of Mrs. Rogers. After the cause went to the jury and the evidence had been received, the court charged the jury, “That to defeat and set aside an instrument under seal, the facts should be proven by two, or one witness with strong corroborating circumstances.” It will be seen by a reference to the evidence in the deposition of Mrs. Rogers, contained in the statement of facts, that her testimony had been offered for the purpose set forth in the judge’s charge. It would seem, then, that after the materiality of the testimony of the absent witness to sustain the same facts sworn to by Mrs. Rogers had been ascertained, it ought to have been considered a good and sufficient ground for setting the verdict aside for the purpose of enabling the defendant to obtain that evidence on a new trial.
We are therefore of opinion that the court below7 erred in overruling the motion for a new trial; the judgment is reversed and the cause remanded, and a veni/re de novo awarded.