delivered the opinion of the court.
This suit was instituted on a promissory note, dated twenty-four years before the filing of the petition. The defence was that it had been paid. Testimony in supp9rt of thi~ allegation was offered. It does not clearly nor conclusively establish the flict, but presents circumstances from ~vhich the jury, after such a lapse of time, ~ere justified in inferring it. We do not feel inclined or authorized to disturb the verdict.
The declarations of the plaintiffs agent are not legal testimony agains* the defendant, and should be rejected by the court. Where a witness waspermittted to testify to the contents of an account book, and after judgment the party moves for a new trial on the ground that he has discovered where the book is, but does not state that if produced it would contradict the statement of the witness, the new trial will be refused.A bill of exceptions was taken on the trial-to the refusal of the court to permit the declaration of the plaintiff’s agent to be given in evidence. They were clearly not legal testimony against the defendant, and no error was committed in rejecting them.
A new trial was moved for on the ground of newly discovered evidence. On the examination of the case before the jury on the 9th day of December, a witness was permitted to testify, without opposition to the contents of an account book. The next day (lie plaintiff swore that he had discovered the book was in New-Orleans, but does not state that if produced it would, in any respect, contradict the statement of the witness. The court was of opinion that this evidence was not shewn to be of importance; for non constat, that it would not have confirmed the witness’s evidence. We think the judge did not err.
And it is therefore ordered, adjudged, and decreed, that the judgment of the District Court be affirmed with costs.