George Stewart sued George B. McQueen, for the price of corn sold and delivered. There was a paragraph for other causes of action, to which no evidence seems to have been addressed. The defendant answered in several paragraphs, leading to issues of fact. Trial by the Court. Finding for the plaintiff for 115 dollar's and 55 cents, and judgment.
The record does not purport to contain all the evidence. During the term at which the judgment was rendered, Me Queen moved the Court for a new trial—
1. Because of newly discovered evidence, material in the cause, which he was unable to discover before the trial.
2. That one of his witnesses failed to state matters of evidence material to the defence, because of intoxication when testifying.
In support of these causes, his own affidavit, and that of his proposed witness, Omit, are filed.
Omits affidavit lends no aid to the first, viz., newly discovered evidence. And the affidavits of the witnesses Ely and McQueen to that point, are not produced, nor their absence accounted for. So that ground for a new trial wholly fails. For it is well settled that the affidavit of the party seeking the new trial is not sufficient; he must either produce the affidavit of the witness as to what he will testify, or account for its absence. Mann v. Clifton, 3 Blackf. 304.—Cummins v. Walden, 4 id. 307.—Priddy v. Dodd, 4 Ind. R. 84.
The intoxication of the witness does not, in this instance, bring McQueen within the rule. Omit himself is silent about the intoxication, and only says he forgot to state the demand, &c. The forgetfulness of the witness to state a material fact, is not good cause for a new trial. Duignan v. Wyatt, 3 Blackf. 385. McQueen’s affidavit *537states that he was not aware of the intoxication of Omit until the trial of the cause was commenced and the witness called to the stand. But that was not too late to remedy the mischief. He should have called the attention of the Court to the condition of the witness. If, after examining into the circumstances, the Court was satisfied that the witness was not in a situation to testify, and the party calling him was not in fault, the trial should be delayed to give the witness time to recover. Mann v. Clifton, 3 Blackf. 304.—Iseley v. Lovejoy, 8 id. 462. Having failed to take this proper precaution at the proper time, he can not afterwards avail himself of the intoxication of the witness as a ground for a new trial.
T. A. Hendricks and W. F. Pidgeon, for the appellant. W. Herod and S. Stansifer, for the appellee. Per Curiam.The judgment is affirmed, with 1 per cent, damages and costs.