
    Thompson v. Ray, administrator.
    1. There was no error in holding that a witness offered by one of the defendants was incompetent to testify to a transaction had with the plaintiff’s intestate, in which the -witness acted as the agent of that defendant. Even if this holding had been erroneous, there would be no cause for a new trial, it not appearing what the transaction wag or what facts were sought to be proved by the witness.
    2. As the alleged newly discovered evidence would not probably produce a different verdict, and moreover as it might, with the exercise of proper diligence, have been discovered before the trial, it affords no cause for setting the verdict aside.
    July 24, 1893.
    Complaint. Before Judge Harris. Campbell superior court. February term, 1892.
    Ray as administrator of Reid sued Thompson and McCurry, alleging in' brief: Reid died in December, 1888, a bachelor. Thompson obtained temporary administration, and found among Reidls papers a note given by McCurry to Reid, and took possession of it as part of the estate, but set up no claim to it. Plaintiff became the permanent administrator and demanded the note, but Thompson refused to give it up. It was prayed that Thompson be required to give up the note, and that plaintiff have a judgment against McCurry for the amount of it. Thompson pleaded that he claimed no title to the note or money due on it, and was willing to deliver it up. Mrs. Thompson was made a party defendant, alleging that the title to the note was in her; that Reid in his lifetime gave it to her, and if ever after such gift he was in possession of it, he held it as her trustee; and that such gift was based on a meritorious consideration. The jury found that plaintiff' recover the note and recover of McCurry on the note. Defendant’s motion for new trial was overruled, and she excepted. The motion alleged, beside the general grounds, that the court erred in holding that Thompson was an incompetent witness to testify to any transaction had with Reid, in which he was the agent of his wife, it appearing that he was such agent as to some transaction, in support of which he was offered as a witness. What this transaction was is not stated in the motion. Another ground was, because of newly discovered testimony. In support of this ground movants offered the affidavit of Strickland, that some time in the early fall of 1888 he saw Keid hand Thompson a book on the Street in Fair-burn, and Reid said to Thompson at the time, “The McCurry note is in the book; take it and give it to Maggie and that Maggie was what Keid always called Mrs. Thompson. Also, the affidavit of Favoi’S, substantially to the same effect. Favors had testified for defendant on the trial, but not to the facts stated in his affidavit. Also, the affidavits of Thompson and wife, defendant’s attorneys, and others, that Favors and Strickland were of good character for truth and worthy of belief; and as to previous ignorance of the knowledge of Strickland and Favors of the facts stated in their affidavits, and as to diligence in discovering evidence before trial.
   Judgment affirmed.

Roan & Golightly, for plaintiff in error.

Thomas W. Latham, contra.  