—On the 12th May, 1862, Ziegler executed his certain instrument acknowledging a deposit by Stefanek of $300 in current money, and promising to pay the same in six months from date, at Corpus Christi.
In May, 1866, suit was brought bn the instrument. Defendant answered, .that the $300 was Confederate money received on deposit, and that he has always been ready, and is now ready, to repay the same. On the trial of the cause it was testified by one witness that current money, at the time and place of giving the instrument, signified Confederate money, and that the same was worth at the time about thirty-five cents on the dollar. At' the request of the defendant, the court charged the jury that they would find the meaning of the words “current money,” and, if the deposit was Confederate money, they would find the value of the same and render verdict accordingly. The *32verdict of the jury seems to have heen according to th§ charge of the judge, so given at the request of defendant. A new trial was asked, based upon the discovery of testimony since the trial, to the effect that the deposit was Confederate money, and the refusal of the judge to grant the new trial is the error assigned.
As the judge gave the charge requested by the defendant, and as the- testimony discovered since the trial is of a cumulative nature, and would not in all probability have produced a different verdict had it been given to the jury that tried the case, we cannot say that the judge erred in refusing a new trial. We do not say the judge, in giving the charge requested by the defendant, did not err in so doing; but inasmuch as the charge has not been assigned as error, and as the facts in the case are not conclusive from the testimony, and as the court cannot judicially know that current money meant the currency of the so-called Confederate States, there is no alternative left us but to affirm the judgment, which is accordingly done.
Judgment aeeiemed.