Bartlett

delivered the opinion of the court, with which Heydenfeldt, Justice, concurred.

The grounds on which the motion for a new trial in the court below was based, were, newly discovered evidence, excessive damages, and insufficiency of the evidence to justify the verdict.

An application for a new trial on the ground of newly discovered evidence, should show affirmatively that the evidence is new, material, and not cumulative, that the applicant has been diligent in preparing his case for trial, that the new evidence was discovered after the trial, and will be important, and tend to prove facts which'were not directly at issue on the trial, or were not then known or investigated by proof. Daniel v. Daniel, J. J. Marshall’s Reports, 52. See Graham on New Trial.

*58 In the case before us, an affidavit was produced, on the part of defendant, and sworn to by him, in which he states, “ that since the trial of said cause at the August Term of the District Court, he has discovered evidence to show a sale of the property sued for, from Hogden (the plaintiff) to Shephard, from whom defendant purchased it, and the nature of the evidence is shown by an affidavit of A. L. Merriam, who states…