Two grounds of error are assigned, 1st. The improper exclusion of evidence; 2nd. The refusal of a new trial.
The answer of the witness to the 5th interrogatory was excluded, it seems, on account of the generality and want of relevancy of the question ; and the succeeding answers to the 11th inclusive, were also excluded because they were based on the 5th. The force of the objection to the deposition is not *70very apparent. It was not necessary that the relevancy of every question should appear from the single question and answer. If its relevancy might be seen from other parts of ' the deposition, or other evidencé in the case, it should have been admitted. “ It is not necessary that the evidence should “ bear directly upon the issue. It is admissible if it tends to, “ prove the issue, or constitutes a link in the chain of proof, “ although, alone, it might not justify a verdict in accordance “ with it.” (1 Greenl. Ev. S. 51 a.) But it does not appear by the record what the answers of the witness were, which were excluded : and without the evidence, upon the admissibility of which the Court ruled, we cannot revise the ruling ; for we cannot certainly know whether the evidence was legally admissible.
A part of the answer to the twelfth interrogatory was excluded, because irrelevant to the issue. But it is not perceived why it was so held. It was averred in the answer, that, after the land became vacant, by reason of the failure of the plaintiff to return the field notes, he, the plaintiff, located another certificate upon the land. This averment the answer of the witness certainly conduced to prove ; and it cannot be doubted that it was a material fact, upon the question of damages.. A part only of the answer of the witness to this interrogatory is given : but that which is given appears to us to have been erroneously excluded. It would have been more satisfactory if the entire answers of the witness had been copied into the record. The bearing of the deposition might then have appeared in a very different light. But from what appears of the testimony of the witness in the statement of facts, and the part of his answer to the twelfth interrogatory, in the bill of exceptions, it seems difficult to avoid the conclusion that the" Court erred in excluding his testimony.
In considering- the remaining error assigned, the refusal of the Court to grant a new trial, it is to be observed, that the motion for a new trial does not question the general sufficiency *71of the evidence, but only its sufficiency in certain particulars, to which that ground of the motion is expressly limited and confined. If the legal sufficiency of the evidence to support a recovery upon the case stated in the petition, had been directly controverted by the motion, the decision of the Court might have been different. It could scarcely have escaped observation, that the case made out in evidence, as it is presented by the statement of facts, is not the case stated in the petition : and that there was an entire absence of proof of some of the most material averments, on which the plaintiff based his right to a recovery. The contract imposed on the plaintiff the duty of performing every pre-requisite, which it is required of the holder of a certificate to perform, in order to obtain the patent. If he was prevented from the performance on his part, by the fault of the defendant, it was incumbent on him to aver and prove it. He alleges that he returned the field notes to the General Land Office; that the defendant borrowed from Mm the certificate, and afterwards sold and transferred the certificate to others, who thereupon obtained a patent for the land. On these averments the plaintiff bases his right to demand compensation in damages ; but they are wholly unsupported by evidence. There is no proof either that the plaintiff ever, in fact, returned the field notes*; or of any excuse for his failure to do so ; nor is there any evidence of any transfer of the certificate by the defendant. The defendant’s possession of the certificate did not relieve the plaintiff from his obligation to return the field notes. He was bound to perform his part of the agreement, or show a sufficient legal excuse for his failure to perform, before he could hold the defendant responsible for a failure on his part. It seems that the patent might have been obtained but for an idle controversy as to who should have the possession of it for the time being ; a matter, it would seem, which was not very material to the rights of the parties. But Avithout inquiring into the merits of that controversy, it may suffice to say the evidence seems *72quite insufficient to entitle the plaintiff to a recovery upon the case stated in his petition. Besides, there is no proof of the value, either of the land or the certificate; which, it would seem, was essential to support the recovery of damages. Bui as the sufficiency of the evidence was not brought in question generally, or in any essential particular, by the motion for a new trial, it might be inferred, perhaps, that some of the evidence upon points not contested, was, by inadvertence, omitted in making up the statement of facts. However that may be, the assignment of error in overruling the motion for a new trial, does not bring under revision the sufficiency of the evidence to warrant the verdict; that ground not having been taken in the motion. The only ground for a new trial, distinctly presented by the motion, is newly discovered evidence: and on that ground we are of opinion the application ought to have been granted. The materiality of the newly discovered evidence, on the question of damages, cannot be doubted; the only matter upon which there can be a doubt, is, whether the defendant has shown sufficient diligence, or a sufficient excuse for not having sooner discovered the evidence ; and it is not perceived how he could have discovered it sooner, when the witness deposes that he “ withheld ” from the defendant information of the fact. A want of recollection of a fact, which, by due attention, might have been remembered, is not a ground for granting a new trial; nor is an inadvertent omission, by a witness, to state a material fact known to him. An affidavit made by a witness, swearing to further important facts, not stated by him on the trial, because his recollection did not serve him, is not a sufficient ground for granting a new trial. (Watts v. Johnson, 4 Tex. R. 319, and cases cited.) The law does not countenance negligence : it distrusts applications for new trials on such grounds, because of the temptation afforded a willing witness to supply what the result of the trial may show to have been wanting in the testimony to make out the case. But where it appears that a witness has purposely with*73held from the party information of a material fact within Ms knowledge, the case is different. No diligence would, ordinarily, discover a witness’ knowledge of a fact thus withheld from, the party; nor could any laches be imputed from the omission to interrogate the witness, on the stand, as to such fact, where, ‘as it seems, was the case here, the witness, when previously interrogated by the party, had withheld his information, and thereby induced the belief that he did not possess a knowledge of the fact. It is very different from the case of a witness omitting to state a material fact through inadvertence, or because his recollection did not serve him at the time. It seems not to admit of doubt, that the defendant was deprived of the benefit of the evidence, without any fault or negligence on his part; and there certainly can be none, of the materiality of the evidence. From the state of case presented by the record, there seems good cause to apprehend, that wrong and injustice was done the defendant on the trial. However that may be, we think it clear that the defendant was entitled to a new trial on account of the newly discovered evidence : and that the Court erred in refusing his application ; for which the judgment must be reversed and the cause remanded.
Reversed and remanded.