¶1Suit by the appellee, against the appellant.
¶2The complaint was in two paragraphs.
¶3The first was for the amount of a note placed by the appellee with the appellant, as collateral security, and which he had appropriated to his own use, and refused, after the principal had paid the debt on which he was surety, to account for, etc.
¶4The second paragraph contained the common counts at common law, with a bill of particulars.
¶5The paragraphs were severally demurred to, as not containing sufficient facts.
¶6The demurrer was overruled, and exceptions entered.
¶7The paragraphs were severally good.
¶8The first contained a definite description of the note,with the other necessary averments.
¶9The second contained a bill of particulars, duly made part of the paragraph.
¶10Answer:
¶111. General denial;
¶122. By way of set-off.
¶13Reply.
¶14The issues were tried by a jury, and a verdict returned for the plaintiff.
¶15A motion for a new trial was overruled, and exceptions reserved.
¶16One of the grounds of the motion was newly-discovered evidence.
¶17The alleged errors assigned are :
¶18*87That the court erred in overruling the demurrers severally to the paragraphs of the complaint, and in overruling the motion for a new trial.
¶19We have already seen that the first error does not exist.
¶20The only point made by counsel in support of the alleged error in overruling his motion for a new trial is, that the newly-discovered evidence entitled him to such trial. The evidence given on the trial not being in the record, we can not say that the newly-discovered evidence was not merely cumulative, nor that it might probably produce a different result on another trial. Hence we can not say the court erred in refusing a new trial on this ground. 2 R. S. 1876, p. 181, note 2.
¶21The judgment is affirmed, with costs