
    Brandendistle v. Wilhelm.
    New Trial.—Newly Discovered Evidence.—A motion for a new trial on account of newly discovered evidence must be supported by the' affidavits of the witnesses by whom the newly discovered facts are to be established, or the absence of such affidavits must be accounted for.
    APPEAL from the Franklin Common Pleas.
   Frazer, J.

Plainly, this cause is here merely for vexation and delay. The transcript was made out on the 2Sd of November, 1868, but not filed in this court until just too late to compel a submission at the May term, 1869.

The error complained of is, that the court below overruled a motion for a new trial on account of newly discovered evidence; and yet no affidavits of the witnesses by whom the newly discovered facts were to be established were presented to the court below, nor was the absence of such affidavits accounted for. This is so universally known to the profession to be necessary, that we are not at liberty to suppose that its omission was an oversight of counsel.

H. C. Hanna and F. S. Swift, for appellant.

T. jB. Adams and F. Berry, for appellee.

It was an abuse of the process of this court, under such . circumstances, to obtain a supersedeas, which, of necessity, is usually granted of course.

The statute limits our power in such cases to assess a penalty for vexation. We have thought it necessary in this case to go to the full extent of the power given.

Affirmed, with ten per.cent, damages and costs.  