
    Welch v. Nasboe.
    An admission made by a snooefiaful party after verdict in respect to a fact material to the issue, and which i'f proved would probably produce a different result, is sufficient cause for a new tria!.
    Appeal from Navarro. This suit was brought August 9, 1849, by Nasboe, against Welch & Franklin, oil the following note : $.500.00. Austin, February llf7t, 1S48.
    On demand we or either of ns promise to pay to Peter,Nasboe or hearer the sum of live hundred dollars for value received. This note to he discharged with Wm. Combe’s receipts on the United States Government.
    G. W. FRANKLIN,
    John Welch.
    Tlie defendants relied on the following evidence of the discharge of plaintiff’s claim.
    IÍICHLAND, April 8th, 1848.
    Mr. J. M. Davis :
    Sir: You will please to destroy the notes, by consent of parties.
    John Welch,
    PeteR Nasboe,
    G. W. Franklin.
    The plaintiff discontinued as to Franklin.
    There was a verdict and judgment for tlie plaintiff against Welch.
    Weleh moved for a new trial, on the grounds of nevvlj’-discowred testimony, and filed liis affidavit ‘"that lie liad used duo diligence to obtain all testimony of which he was informed before tlie trial of this case.” The newly-discovered testimony was that the plaintiff had been heard to say, after the rendition of the verdict, ” that the note on which this suit was brought was, with another note and tlie articles of the horse-race, in the hands of James M. Davis, the person to whom the written directions were given to destroy the notes,” &<:. The affidavit of the witness who heard the plaintiff make the declaration was filed in support of the motion.
    The court overruled tlie motion.
    The statements of facts showed that the note sued on and the order to Davis were the only evidence before tlie jury.
    
      F. L. Jiarziza, for appellant.
    
      T. J. Jennings, for appellee.
   Lipscomb, J.

Tlie only question presented in this case is, does the affidavit furnish sufficient ground for a new trial. It is newly-discovered evidence since the trial, and that evidence is the acknowledgment of the opposite party, made after the rendition of tlie verdict.

'Pile rule laid down by tills court in Madden v. Shapard, 3 Tex. R., and in Edrington v. Kiger, 4 Tex. R., is, “ that to entitle a party to a new trial on the ground of newly-discovered evidence it is incumbent on liim to satisfy tlie court that the evidence has come to his knowledge since the trial; that it was not owing to a want of due diligence that it was not discovered sooner, and that it would probably produce ;i different result, upon a new trial.”

From the nature of the evidence disclosed in tlie affidavit of Johnson it is iinpos-iblo that it could he known by the party before tlie trial. lVe therefore believe that tlie application fora new trial was within the rule above noticed and thaf a. new trial ought to have been granted.

The judgment is reversed and remanded for a new trial.

Reversed and remanded.  