#### Robert G. Hewitt v. S. Hexter & Co.

Negotiable Instruments—Note—Payment—Limitations.

In an action brought to recover a balance claimed to be due upon a promissory note, the defense being payment, and the Statute of Limitations, the judgment being for the plaintiffs, this court holds, in view of affidavits filed by the defendant, that a new trial should have been granted upon the ground of newly discovered evidence.

[Opinion filed June 12, 1891.]

Appeal from the Circuit Court of Menard County; the Hon. George W, Herdmah, Judge, presiding.

Mr. T. W. McNeely, for appellant.

Mr. Charles Nusbaum, for appellees.

Conger, P. J.

On the 3d day of December, 1876, Hubert G. Hewitt gave bis note for $100 to his nephew, Louis C. Hewitt, and this suit is for recovery of the balance claimed to be due on this note, it having been assigned to appellees. The defenses were payment and the Statute of Limitations. There were two credits upon the back of the note which read as follows: “ Feb’y 1, 1879, credit on the within note $9.” “July 28, 1880, a credit of $3 on the within note.”

The first credit of $9 was claimed to be for a quarter of beef, and the one of $3 was claimed to be for one day’s work of one George Dorand, who it was claimed by Louis C. Hewitt was in the employ of appellant, and with the team of appellant worked for said Louis C. Hewitt, for which he gave appellant the credit of the $3.

Appellant denied both these credits, claiming that the first was a present, or rather intended as compensation to said Louis C. Hewitt for pasturing stock of appellant, while as to the last he denied that Dorand ever worked for him at all.

*586The evidence is not very satisfactory as to these credits, bnt we should not interfere with the judgment for that reason. And we think the court, under the weak and unsatisfactory character of the evidence, should have granted a new trial "upon the ground of newly discovered evidence.

On appellant’s motion for anew trial he filed the following affidavits:

> “ State of Illinois, 1 Honard County. \ ss'

> ‘•Bobert G. Hewitt being first duly sworn, deposeth and says, that upon the trial of the case of S. Hexter & Co. v. This Affiant, Louis Hewitt, testified that about July, 1880, he placed a credit of §3 upon the note in question in such suit at the request of this affiant, and that such credit was for work and labor of George Dorand, and a team, then done for said Louis Hewitt at his request by said Dorand, and that Dorand was then in the employ of affiant, and that Dorand then had in such team the horses of affiant. That affiant before such trial made dne and diligent inquiries as to what the credit of §3 was for, and was unable to find out or know the same until Louis Hewitt swore the same on said trial. That such testimony was a surprise to affiant; that affiant did not pay said $3 to Louis Hewitt at any time, and did not furnish the labor of said Dorand as stated by Louis Hewitt; that affiant, after said trial on the 21st inst., went to the residence of said George Dorand, in Cass County, Illinois, and that said Dorand informs affiant that he never worked for said Louis Hewitt with or without a team at the request of affiant, or in 1880, or at any other time, and that said Dorand informs affiant that he will so testify, and affiant so believes. And affiant makes the affidavit of said Dorand part hereof. That affiant knew of no person by whom he could prove such facts at the time of the trial, before or since, except said witness, Dorand, and did not know what he could prove by said Dorand until after the trial. That said Dorand was during the day of said trial more than ten miles from the court house in Petersburg, Illinois, where such trial took place, and that if a new trial is granted, this affiant believes he can *587liave such witness, Dorand, present at a trial of this case at the next term of this court, and that by his testimony he can justly prevent any verdict herein being found against him. That the affiant is not indebted to plaintiffs.

> “ E. G. Hewitt.”

> “ Subscribed and sworn to October 22, 1S90.

> “ Theo. C. Bennet, Clerk.

> ' “ State oe Illinois, 1 - “ Cass County, J s "

> “ George Dorand being first duly sworn, on oath deposeth and says: I never, at any time, worked for E. G. Hewitt a day in my life at any kind of employment.

> “Geo. G. Doeand.

> “ Subscribed and sworn to before me this 22d day of October, 1890.

> “ I. H. Stanley, J. P.”

> Said affiant being further sworn on oath, says: I never worked a day for Louis C. Hewitt on account of E. G. Hewitt at any time, but did work for said L. C. Hewitt on account of Abijah S. Nottingham.

> “ George Dorand.

> “ Subscribed and sworn to before me this 22d day of October, 1890.

> “ I. H. Stanley, J. P.”

Without commenting on authorities cited in the briefs, or attempting to lay down any general rule, we feel satisfied that under all.the circumstances of this case, justice required that a new trial should have been granted.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.