
    Conradt vs. Sixbee.
    
      New trial: newly dñscove>'ed evidence
    
    1 Motions for a new trial on the ground of newly discovered evidence are received with great caution.
    2. When such newly discovered evidence consists of admissions or declarations of a party, there should be a reasonable probability that it would produce a different verdict, or a new trial should not be granted.
    3. In view of all the facts in this case, the court does not think it probable that a different verdict -would be rendered if a new trial should be granted, and therefore affirms the order refusing it. Dixoh, O. J.
    APPEAL from tbe Circuit Court for Jefferson County.
    Action to recover balance due for 122 days’ work alleged to bave been done for tbe defendant between May 1st and October 29tb, 1864. Answer, tbat plaintiff bad labored for defendant only 53 1-2 days, for wbicb be bad been fully paid. It was claimed tbat tbe remainder of tbe time named in tbe complaint, plaintiff was in tbe employ of one John Kimball, and not of defendant. Plaintiff testified in accordance witb tbe complaint; while tbe testimony of defendant and said John Kimball-sustained tbe allegations of tbe answer. Yerdict for tbe plaintiff; and a motion for a new trial on tbe ground tbat tbe verdict was against tbe evidence, denied. Afterwards, during tbe same term, defendant, on bis own affidavit and tbat of Abrabam Kimball, moved for a new trial on tbe ground of newly discovered evidence. Defendant’s affidavit states, in substance, tbat after tbe trial be learned from Abrabam Kim-ball for tbe first time that plaintiff bad bad a conversation witb him (said Abrabam) sometime in June or July, 1865 (before tbe commencement of this action), about tbe matter here in controversy; tbat plaintiff wanted Abrabam to use bis influence to persuade bis son John Kimball to settle witb plaintiff and pay him tbe balance due him for work done for said John in 1864; tbat in this coversation and others wbicb plaintiff bad witb said Abrabam, plaintiff gave tbe latter to understand that defendant bad paid bim all that was due from bim for work done in 1864, and that bis claim was against John Kim-ball. — Tbe affidavit of Abrabam Kimball states that be has read that of defendant; that be bad tbe conversations with plaintiff set forth therein; and that at those conversations plaintiff made tbe representations there stated. Plaintiff filed a counter-affidavit, denying that be ever made any -such statements to Abrabam Kimball, and alleging that be did have a conversation with said Abrabam, in which be stated to tbe latter that Sixlee was indebted to bim (affiant) in tbe sum of $135 for labor performed for said Sixbee during 1864; that be bad been endeavoring to prevail on Sixlee to pay bim, but tbe latter refused, alleging as a reason therefor that John Kimball would not consent to it, and Sixbee bad told affiant that if John Kimball would give bis consent, be (Sixlee) would pay affiant ; that affiant further told said Abrabam that Sixlee and John Kimball were confederating together to cheat affiant out of bis just dues, and that Sixlee, as a pretense for not paying affiant, asserted that John Kimball would not give his consent, and affiant therefore asked said Abrabam to go to bis said son, and prevail on bim, if possible, no longer to allow himself to be used as a tool by said Sixlee in cheating men out of them just dues, &c., &c.
    Tbe motion was denied,; and defendant appealed.
    
      Gerrit T. Thorn, for appellant.
    
      I W. & G. W. Bird, for respondent.
   Cole, J.

It is familiar doctrine that motions for a new trial on the ground of newly discovered evidence are received with caution. And when such newly discovered evidence consists, as in this case, of admissions or declarations of a party, there should be a reasonable probability that such evidence would produce a different verdict, before a new trial should be granted. In view of all the facts of this case, we do not think it probable that a different result would be obtained if another trial should be had. 5 S. & R., 41; 6 Greenl., 479; 6 Pick., 114.

By the Court. — The order of the circuit court is affirmed.

Dixon, C. J., dissents.  