
    
      ANDRE vs. BIENVENU.
    
    Fall, 1810.
    First District.
    The witness must be named, and the nature of the evidence lately discovered, stated in order to obtain a new trial,
    Motion for a new trial, on the ground of new evidence discovered since the trial.
    . . Duncan, against the motion,
    The affidavit is insufficient, for it does not state the name of the witness, nor the nature of the evidence. This court requires it before they will grant a commission to take depositions.
    Ellery, contra.
    The act of 1805, chap. 26, sec. 6, provides, that a new trial shall be granted “ whenever new evidence material to the cause “ shall have been discovered after trial, which "the party by reasonable diligence could not “ have discovered before.” The affidavit has brought the case within the very words of the law. It is all that can be required.
   By the Court.

New trials are always in the discretion of the court, they ought to be enabled to judge of the materiality of the facts for the proof of which another trial is desired. We required it before a continuance was granted in the case of Mann & Bernard vs. Hunt & Smith, ante 22.

Motion denied.  