The cause was commenced by Hickman against Bronson, before a justice, where the plaintiff had judgment for 53 dollars and 81 cents. On appeal to the Circuit Court, Hickmcm had judgment for 50 dollars. The motion for a new trial, assigning for cause the insufficiency of the evidence, and newly discovered evidence, was overruled.
The evidence in the cause is made part of the record in proper form.
The same causes are assigned for error, which were assigned for a new trial.
The first, viz., the insufficiency of the evidence, cannot be noticed. There is no such glaring insufficiency of proof as would justify this Court in interfering with the verdict, sanctioned, as it has been, by the action of the Court below in overruling the motion for a new trial. This has long been the settled rule in this Court. Mann v. Clifton, 3 Blackf. 304.—Watson v. Allen, 4 Ind. R. 537 (1).
The second point made, viz., the newly discovered evidence, presents more difficulty. The judgment recovered 'was 50 dollars. The defendant below produced his own affidavit, and the affidavits of two other witnesses, agreeably to the rule as heretofore held by this Court. 4 Blackf. 308.—Priddy v. Dodd, 4 Ind. R. 84. Nothing was wanting in point of form.
The only question is as to the substance. The newly discovered evidence should seem obviously sufficient to change the result upon a new trial. Hull v. Kirkpatrick, 4 Ind. R. 637. Nor where the evidence is merely cumulative will a new trial be granted. Jennings v. Loring, 5 Ind. R. 250.-Simpson v. Wilson, 6 id. 474. In this latter case it was held, too, that the evidence must have come to his knowledge after the trial; that it must appear that its discovery so late was not owing to a want of diligence; and that it would probably produce a different result (2).
Tested by these rules, we think the party entitled to a new trial. There are two witnesses to the same fact. Both swear that they heard the plaintiff below admit, just *5before the trial, that the defendant below owed him justly about ten or twelve dollars; and that they did not communicate this admission to the defendant below until after verdict. "We cannot say what effect this would have had on the jury. But in weighing it here with reference to the party’s right to a new trial, we must look at the evidence in the cause. That consisted almost entirely of vague admissions of the defendant below. The jury might -have regarded the admissions of the opposite party, so far as they went, a sufficient answer. And as these witnesses appeared to the Court below, or as they appear to us, it is not easy to see how anything is to be presumed against their credibility.
L. C. Jacoby, for the appellant. D. H. Colerick, for the appellee.We, therefore, think the newly discovered evidence material, and likely, in the state of the evidence presented by the record, to have changed the result. Nor does it appear that there was any negligence in discovering it; or that any degree of diligence could have ascertained it sooner.
Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.
Roberts v. Nodwift et al., 8 Ind. R. 339.—Gibson v. The State, 9 id. 264.
Gibson v. The State, 9 Ind. R. 264.—Swift v. Wakeman, id. 552.