Page:North Dakota Reports (vol. 2).pdf/86

 tion, with the single exception of the ground of newly discovered evidence, by the concession of respondent's counsel that all other grounds are abandoned. The only defense which it can be claimed that the newly discovered evidence would tend to establish is that of payment. The first paper which the record discloses is a petition made in form by Harris, the administrator, but, as it is verified by one of the attorneys for the administrator upon information and belief, it is difficult to see what weight is to be given it. Moreover, it contains nothing of importance, except the admission of Joseph Leighton in his lifetime that he had paid the plaintiff's claim. We fail to see that this was an admission against his own interest. It would, indeed, be a novel rule that a new trial could be granted upon evidence which must be rejected when offered on trial as the worst form of hearsay. In the affidavit of W. B. Jordan there is a repetition of these solemn admissions of Leighton that he had settled the plaintiff's claim. The only pretense of any legal evidence of payment is a receipt claimed to have been found among the papers of Joseph Leighton after his death. It reads as follows: "St. Paul, Minn., October 19, 1883. $150.00. Received of Joseph Leighton one hundred and fifty dollars and 00-100, the same being in full for interest and profits in Str. Eclipse and F. Y. Batchelor to date. Jos. McC. BIGGERT." What possible connection there is between the receipt and the claim of plaintiff, which is for freight for transporting army stores in 1880, it is impossible to conceive. No explanation is offered. The receipt refers expressly to interest and profits in steamers Eclipse and F. Y. Batchelor, aud not to compensation for carrying freight for Leighton and others upon the steamers three years before. By his own terms it precludes the idea that it records a settlement of the claim in controversy in this action. It is clearly explained by the affidavit of Joseph McC. Biggert, who signed the receipt. His explanation is not controverted. He says that some time after the sale of the steamer Eclipse, in the spring of 1881, to Joseph Leighton, he was employed by Mr. Leighton as agent of that steamer, and of the steamer F. Y. Batchelor, at Bismarck, and that he was to be paid $150 per month and one-eighth of the earnings of each of the boats for