Opinion by
Mr. Chief Justice Eakin.
1, 2. The plaintiff moved for a new trial on the grounds (1) that the evidence was insufficient to justify the ver[290]*290diet, and (2) of newly discovered evidence. A motion to set aside a verdict for insufficiency- of evidence to sustain it is addressed to the sound discretion of the trial court, and cannot be assigned as error on appeal. State v. Foot You, 24 Or. 60, 70 (32 Pac. 1031: 33 Pac. 537); McCormick Machine Co. v. Hovey, 36 Or. 259 (59 Pac. 189); Houser v. West, 39 Or. 292, 395 (65 Pac. 82); Crossen v. Oliver, 41 Or. 506 (69 Pac. 308). And as there was no motion for a directed verdict, the case is not before us on the insufficiency of evidence.
3. The motion for a new trial on the ground of newly discovered evidence is insufficient to present that question, as it does not comply with the statute. Such a motion must be based upon an affidavit setting forth the facts upon which it is based. Sections 174, 177, L. O. L.; State v. Hill, 39 Or. 90, 94 (65 Pac. 518). Therefore it was not error to deny the motion for the nonsuit.
Plaintiff also assigns as error that, although the court’s instructions to the jury as a whole are correct, they are misleading to the jury. No exception was taken to any instruction, and none were requested by plaintiff, and we find no error in relation thereto. They are most favorable to plaintiff.
4. Plaintiff also excepts to the admission of evidence as to the want of consideration for the note, but under the statute (Section 5857, L. O. L.) every negotiable instrument is deemed prima facie to have been for a valuable consideration. However, want of consideration may be proved, if questioned.
5. The court excluded evidence offered by plaintiff as to the general habits of defendant in the use of intoxicating liquors, and particularly at the time of the injury to plaintiff’s husband, and this was excepted to. But such evidence had no bearing upon the issues in the case, and was immaterial. Defendant was not present when the injuries were inflicted, and personally took no part in them.
[291]*2916. Evidence as to the physical condition of plaintiff’s husband subsequent to the execution of the note, is also immaterial; it having no bearing upon the question of duress or the consideration for the note.
We have considered the other assignments of error, and find that they are without merit.
The judgment of the lower court is affirmed.
Affirmed.
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