belief, and no reason is assigned why some one familiar with the fact does not make an affidavit as to his authority. It is stated in substance, that in this conversation Leighton informed Biggert that the claim in question had been paid. There was no legal evidence of the authority of John D. Biggert to bind the parties interested; and without such authority the statements of Leighton made to him are only declarations in Leighton's own interest. "In asking for a new trial on the ground of newly discovered evidence, it is not sufficient for the moving party to state in his affidavit what, as he has learned, certain persons know about the matter, and how, as he believes, they will testify. He must produce the affidavits of the newly discovered witnesses as to what they know, and as to what they will testify." Arnold v. Skaggs, 35 Cal. 686; Hayne, New Trial & App. § 93. It is singular that Leighton should have claimed to John D. Biggert, at this conversation on July 10, 1888, that the claim had long since been paid and settled, when it is undisputed that he (Leighton) wrote Biggert on June 27, 1888, inquiring whether, in case he should settle with other parties, they would see him clear of Braithwaite, the plaintiff; and on July 21, 1888, 11 days after this alleged talk, he again wrote Biggert that whatever was due had been ready for the past seven years, and would be paid whenever he could safely pay either Braithwaite or Biggert. We find nothing in the affidavits used upon the motion which rises to the dignity of evidence of payment of the claim in question. Had such evidence been disclosed, then, no matter how strongly rebutted, the exercise of the discretion of the court in awarding the motion for new trial would not, except in a clear case, be disturbed. This is the true limit of the rule that the decision of the trial court will not ordinarily be interfered with. But there must be facts for the court to exercise its discretion upon, and these facts must be sufficient to enable the appellate court to see that the trial judge had some legal evidence showing a legal ground for a new trial because of newly discovered evidence. In such a case, the rule applies which makes the exercise of the discretion of the trial court binding upon the appellate court in the absence of a palpable abuse, al-
