The opinion of the Court was delivered by
Mr. Oh. J. Murray. Mr. J. Heydenfeldt concurred.*348We are of opinion that the District Court should have granted a new trial in this case, on the ground of newly discovered evidence.
The report of the referee discloses some hesitation and doubt in arriving at the conclusions of fact, and his [348] supplemental *report shows that, if such newly discovered evidence had been adduced on the trial, the result, in all probability, would have been different. Under such circumstsnces, the ends of justice would be better preserved by a new trial.
Ordered accordingly.
Respondent petitioned for a rehearing, which was denied.