We are required to revise the judgment of the court overruling the motion for a new trial—
First. As to the finding of the jury upon the evidence.
In order to enable the jury to arrive at the conclusion expressed in their verdict, they must have decided against the right to recover upon the principal demand sued for; that is, the acknowledged account for §922.04. The testimony in respect to tlio other accounts and matters in controversy between the parties admitted of different interpretations and conclusions, according to the credit which tlie jury may have given to different portions of the testimony and to tlie statements of the witnesses. Anil, excluding the larger demand jnst mentioned, there was testimony from which, it is conceived, the jury may have found for the defendant the verdict which they rendered without exceeding their authority; for it is the peculiar and exclusive province of the jury to judge of the credibility of witnesses, and to weigh the evidence; and tlie court will not undertake to disturb the verdict, unless the jury appear to liave found either without or against evidence. And especially will the appellate court be cautions in disturbing the verdict, and will not do so unless in a very clear case, when the judge'in the court below, who heard the witnesses testify, and who, therefore, must he far more competent to judge of tlie weight to which tlie evidence is entitled than this court can be from the more inspection of a statement of the evidence in the record. (Briscoe v. Bronangh, 1 Tex. R., 326, 340.)
It then having been competent, as we conceive, for the jury to have found the jn'esent verdict, if they were authorized to reject the principal demand of the plaintiff, their right to do this under the evidence is, as to this point in the case, the only question.
This demand is evidenced by a writing signed by both parties, but which was executed solely for the. benefit of tlie plaintiff. It contained an acknowledgment of indebtedness from the intestate to him; it could have been evidence only for him, and it evidently was properly and exclusively his and belonged to his custody, as touch so as if it had been a promissory note executed to him by the intestate. But this paper was found to have been in the possession of the intestate at the time of his death. This circumstance unexplained, and taken in connection with tlie testimony respecting the amount of indebtedness between the parties and the custody of their books and papers, was, we think, sufficient to warrant the jury in coming to the conclusion that this demand had been settled. This at least was a conclusion which the jury were at liberty to draw from the circumstances, and having done so, we cannot undertake to say they have found contrary to the evidence. The court will never set aside a verdict as against the evidence merely because they might upon an examination of the evidence have arrived at a result different from that found by the jury. (12 N. N. R., 171; 6 Leigh R., 230.)
Second. As to the alleged misconduct of .the jury. This court has decided that in trials for minor offenses and in civil canses the mere separation of the jury, without the permission of the court, when there does not appear to have been any other misconduct on their part, will not of itself vitiate the verdict, though it is a misdemeanor for which the jury may be punished. (Cannon v. The State, 3 Tex. R., 31.) Nothing more than the mere separation of a juror from his fellows is complained of in this case. No other misconduct on liis jiart is pretended; and that, we are of opinion, is not sufficient to vitiate tlie verdict. The fact that tiiis juror may have stated that the jury had appointed a committee of their number to make certain investigations or calculations respecting the matters in controversy between the parlies and the affidavit of the plaintiff respecting the conduct of the jury we do not think entitled to any consideration.
*48. Third. The remaining cause assigned in support oi the motion for a new ■trial is the discovery of new and material evidence.
Iu Madden v. Shapard (3 Tex. R., 49) we decided thát a new trial will not be granted on the ground of newly-discovered evidence, unless the facts proposed to be proved by the new evidence shall have been disclosed and set out in the application; nor in general when the application is supported only by the affidavit of the party.
The newly-discovered written evidence alleged by the party to be in his possession is not set out or disclosed in his application, and the new facts proposed to be proved by the witness, Grant, are shown only by the affidavit of the party; and no reason is assigned why that of the witness was not produced. The application, therefore, does in no respect conform to the rule. The newly-discovered written evidence ought to have been produced, in order that the ■court might judge of its materiality; and the application ought to have been ¡accompanied by the affidavit of the witness to the new facts proposed to be proved by him. There ma3>- be an exception to the rule that the affidavit of the party alone, in support of his application, will not be sufficient where it is not in his power to produce other evidence; but it does not so appear in the present case.
. We are of opinion that the application for a new trial was rightly refused, ■.and that the judgment be affirmed.
Judgment affirmed.