
    Land v. Miller.
    It is not stated nor does it appear that, by the use of ordinary diligence, the new evidence-might not have been known to the party before the trial. Besides, there is no statement of facts; and we are not informed what evidence was given on the trial. We have no means of knowing whether the new evidence be not merely cumulative, or of judging” what might have been its effect upon a second trial. (Note 64.)
    Where one of the grounds of a motioa for a new trial was, that an important witness of the defendant was “so disguised with liquor” that he was unable to testify as clearly as he otherwise would have done, &e.: Held, That after having taken the chance of a verdict upon his testimony, under the circumstances, the defendant could not make that a ground for a new trial which must have been known to him at the time, and which, if sufficient to authorize the awarding of a new trial, would have been sufficient to have entitled him to a continuance, if applied for when the inability of the witness to testify in a proper manner was discovered.
    Appeal from Gonzales. Suit by the payee of a promissory note — the appellee-against the payor, the appellant. Answer, that the note was staked upon a horse-race ; that the “plaintiff defrauded defendant in said race; ” “that the note was not fairly obtained by plaintiff, and that the judges of said race never-made any decision as to who had won the race.” Verdict and judgment for the plaintiff. Motion for new trial on the ground—
    1st. Of newly-discovered evidence, to wit: “that the defendant had' learned since the trial that the decision of the race having been left to four-judges, they never decided who won the race, as defendant will be able to-show to the court by the testimony of three of the judges, to wit, A. Organ,. Win. Boswell, and P. Coe ; and defendant verily believes,” &c. The affidavit of A. Organ, one of the judges as aforesaid, was filed, to the effect that “ the judges never decided who had won the race,” &e.
    2d. That one of defendant’s witnesses, P. Coe, was “ somewhat disguised, witli liquor ” when he testified; by reason of which, it was stated, in substance,, he was unable to testify as clearly and satisfactorily as he otherwise would have done, and no -weight was attached to his testimony by the jury.
    Both grounds were sustained by the affidavit of the defendant. The motioa was overruled. There was no statement of facts. The only error assigned was, that the court erred in overruling the motion for a new trial.
    
      A. H. Phillips, for appellant.
    I. Two grounds are set forth in support of the motion for the new trial,, either of which., we contend, is sufficient to sustain the motion.
    1st. Newly-discovered evidence. (Watts a. Howard, 7 Met. R., 478; Gardi-ner v. Mitchell, 6 Pick. R., 114; Parker v. Hardy, 24 Pick. R., 246 ; Kane a-Bnrris, 2 Sm. & Marsh. R., 313; Vardeman a. Byrne, 7 How. Miss. R., 365.)-
    The record shows that the motion was sustained by the affidavit of the party,, that tlie evidence had come to his knowledge since the trial; and the statement of the evidence and the affidavit of the witness shows that it would be a bar to» the suit. (Robbins a. Fowler, 2 Pike R., 133; Commonwealth a. Mundy, 2‘ Ashm. R„ 41)
    It is admitted that, according to the decisions, there is an apparent omission in the affidavit of the party as to the diligence used by him before the trial. But tiie entire affidavit of the party, as also the affidavit of Organ and. the statement as to the intoxication of Coe at the trial, clearly shows that. the omission of the statement of diligence in the affidavit is attributable-rather to a non-observance of technical formality in the draft of the affidavit than to actual negligence in not procuring the testimony before the trial.
    Note 61. — Augustine v. The State, 20 T., 163; Angelí v. Strut, 21 T., 185.
    The importance of the testimony, as exhibited in the affidavits, rebuts the-presumption of negligence in its procurement, where it is shown that the party" desired to defend against the claim.
    II. Surprise, from the intoxication of Coe, one of the witnesses for the defendant on the trial. (McFarland t>. Clark, 9 Da. R., 134; Tilden v. Gardiner, 25 Wend. R., 663.) The surprise in the case at bar was as great as though the-witness had absented himself the moment the case was called.
    In this case the party shows merits, and that, bjr the incompetency of the-witness to testify i his rights were sacrificed. (4 Miss. R., 361.)
   WheblbR, J.

It is not stated nor does it appear that, by the use of ordinary diligence, the new evidence might not have been known to the party before the trial. Besides, there is no statement of facts; and we are not .informed what evidence was given on the trial. We have no means of knowing-whether the new evidence be not merely cumulative, or of judging of what might have been its effect upon a second trial.

The witness, who is said to have been intoxicated, was called by the defendant, and permitted to testify; and after having taken the chance of a verdict, upon his testimony, under the circumstances, the defendant cannot make that a ground for a new trial which must have been known to him at the time, and which, if sufficient to authorize the awarding of a new trial, would have been sufficient to have entitled him to a continuance, if applied for when the inability of the witness to testify in a proper manner was discovered.

That the application for a new trial does not conform to the well-settled' rules of the law on that subject, upon either ground embraced in it, is-quite too clear for argument. We are of opinion that a new trial was rightly-refused, and that the judgment be affirmed.

Judgment affirmed.  