
    William O. Smith and Samuel Wallace v. James Bailey.
    - Section 4 of the act to relieve the District Courts, passed. April 12, 1858 (S. & 0. 1155), does not apply to cases of motion for a new trial, on the ground of newly discovered evidence, so as to make the overruling of the motion a ground of error; andas such motions are addressed to the discretion of the court, its rulings thereon can not be assigned for error, unless where the material facts are admitted, or found by the court, or where there has been a manifest abuse of discretion.
    M otion for leave to file a petition in error to reverse the judgment of the District Court of Hamiltou county.
    The plaintiffs in error were defendants in the action below, and on return of a verdict against them they moved for a new trial, on the ground of newly discovered evidence; and they now assign for error the overruling of that motion. The record embodies a bill of exceptions, setting forth several affidavits presented by the plaintiffs in error, tending to show the materiality of the testimony, and that the plaintiffs were ignorant of its existence at the time of the trial, and had used due diligence to procure it. The bill of exceptions also sets forth counter affidavits presented by defendant in error.
    
      Butterworth &¡ Vogeler, for the motion.
    
      Me Guffey, Morril $■ Strunk, contra.
   By the Court.

We know of no case where error has been maintained on this ground. The case does not come under the provisions of section 4 of the act to relieve the District Courts, passed April 12, 1858 (S. & C. 1155). Motions of this kind are addressed to the discretion of the court, and in the absence of statutory provision, its rulings thereon can not be assigned for error—at least not unless where the material facts are found by the court, or agreed upon by the parties, or where there has plainly been an abuse of judicial discretion.

Motion overruled.  