The testimony of Fink is material, to prove that the ancestor of the lessors of the plaintiff is not the soldier who drew the lot, and that they have no title-.
It is true, that Fink was present at the trial, and- that the defendant knew beforehand what he could prove. But the defendant was not present at the trial, and was a tenant under Cornwell and Barton, to whom, he had abandoned the defence; and Cornwell swears, that he knew nothing of this testimony until after the trial.The suit is to change a possession of several years’ standing, and that is an auxiliary consideration in support of the motion. The motion is therefore granted,, on payment of costs.