When it clearly appears that a witness has fallen into a mistake in giving his testimony upon a material point in the cause, the court may, in its discretion, grant a new trial. (De Giou v. Dover, 2 Anst. 517; Richardson v. Fisher, 1 Bing. 145; Warren v. Hope, 6 Greenl. 479.) But the circumstances of the case should be such as to render it probable that 'the mistake of the witness had the effect of turning the verdict of the jury. It is plain enough that the witness Earle fell into a mistake as to the time when the plaintiff was at his store; and as the evidence stands corrected by his affidavit, it has no bearing against the plaintiff. Still, the jury might well find for the defendants again on another trial; for the partnership had been dissolved more than two years before the note was given, during which time the defendants had been separately in business in different streets, each under his own individual name. Such facts would warrant the inference that the old business acquaintances of the defendants, residing in the same city, knew that the partnership had been dissolved. (Irby v. Vining, 2 McCord, 379.) But as there are some other facts in the case which make for the plaintiff, and the circuit judge thinks the verdict should be set aside, a new trial is granted on payment of costs.
Ordered accordingly.