1. The newly discovered evidence insisted on in the motion as a ground for a new trial, in so far as the same is material to the controlling issues in the case, is of an impeaching or cumulative character, and therefore did not require the grant -of a new trial.
2. The charge of the court complained of, that “a note is not payment until it itself is paid, unless the parties themselves agree that it is taken as payment,” being correct as an abstract principle of law, and no reason being assigned in the motion for a new trial why it was not applicable to the facts of this case, this court will not reverse a judgment refusing a new trial on such ground. There was sufficient testimony to sustain the verdict. Judgment affirmed.
All the Justices concurring.