Gaines vs. Forcheimer & Brothers.-Statement of Case. to this suit in reference to a mortgage given to plaintiffs in connexion with matters of general account, but remembers none in which the mortgage was exclusively the object of settlement or arrangement. On these occasions payments were made by defendant and by plaintiffs admitted to have been received, but precisely what sums or amounts, or what the particular application of them, he is unable to state, without reference to the books of plaintiffs. Could not say positively whether the precise sum of one hundred dollars was on either of these occasions or on any occasion paid by defendant to plaintiffs, or by them or either of them admitted to have been paid by defendant, either on the mortgage or on general account. His impression was, there was a payment of one hundred dollars made by defendant and acknowledged by plaintiffs, which may have been intended to be applied upon account of the mortgage, but has no distinct recollection of plaintiff or either of them acknowledging such an application of it. Could not distinguish the payment made on account of the mortgage and those on general account, but is confident that the payments made amounted altogether to as much as five hundred dollars. In the spring of 1852 defendant gave to plaintiffs notes of John O. Carroll and others in connection with the payments made to plaintiffs, but does not recollect that these notes were given in payment or that they were taken otherwise than as collateral. Witness as book-keeper of plaintiffs and on their behalf, gave defendant a receipt for them, but cannot say whether they were on solvent persons, or that they were taken in preference to others. On cross-examination, the witness testified that he could not say when the payments were made—they ranged between September, 1851, and September, 1852. Could not give the dates of any payment, or say which, if any amount, still remains unpaid. Does not remember any understanding in reference to the notes of Carroll, more than already Gaines vs. Forcheimer & Bros.-Opinion of Court. stated. His inference was that when taken, those notes were considered doubtful. At the trial, a verdict was rendered for plaintiffs for $111 10, and at the same term of court a motion was made by defendant for a new trial, on the ground of newly discovered evidence, supported by his affidavit, which • motion was granted by the Court. At the following term the case was, on motion of defendant, continued, and at the succeeding term a trial was again had, and a verdict rendered in favor of the plaintiffs, for the sum of $181 91-100. A new trial was again asked for, on the following grounds, viz: First, because the verdict is contrary to the weight of evidence; second, because the verdict is contrary to the law as laid down and admitted by the court. The court refused the motion for a new trial, and defendant took his writ of error. The record does not show what the charge of the court to the jury was, or that any other testimony was offered in the case. C. W. Jones for plaintiff in error. J. M. Landrum for defendants in error. DUPONT, C. J., delivered the opinion of the court. The appellees brought suit in the Circuit Court of Santa Rosa county, against the appellant, a maker of a promissory note. The defence was payment and set off. Upon the trial, the jury gave a verdict for the plaintiff, for the sum of $111 10-100. At the same term of the court, the defendant moved for a new trial, supported by affidavit, on the ground of newly discovered evidence, which was granted by the court and the cause continued to the next term. At the ensuing term, the cause was again continued on the showing of the defendant, and at the following term, a trial was Gaines vs. Forcheimer & Bros.-Opinion of Court. had and the jury returned a verdict in favor of the plaintiffs, for the sum of $181 91-00. The defendant again moved for a new trial, on the grounds that the verdict was contrary to the weight of evidence, and that it was contrary to the law as laid down by the Court. This motion for a second new trial was refused by the court, and from that ruling, the appeal was taken and is now brought to this court for our adjudication. We have carefully examined the record in this case, and can discover no good reason for disturbing the verdict of the jury. With reference to the first ground of error assigned, to-wit: that the verdict was contrary to the weight of evidence, it is well settled that the verdict will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict. (1 Grah. and Wat. on N. T., 380.) In reviewing the testimony in the case, we are clearly of opinion that instead of the preponderance having been against the verdict, it was clearly in its favor. The verdict seems to have allowed to the defendant full credit for the payment that had been made on the note; and as to the receipt for notes and due bills, given by the plaintiffs to the defendant, we think the jury were correct in not regarding it as evidence in the case, there being nothing on its face to show the application to be made of the proceeds when collected, and a total failure in the evidence going to prove any responsibility on the same, over to the defendant. We are at a loss to discover any ground for the second error assigned, to wit: that "the verdict was against the law, as laid down by the Court." There is nothing in the bill of exceptions to show how the Judge below laid down the law, and even if there were, we are satisfied that the verdict violated no principle of law. no principle of law. We recognize the Judge vs. Moore.-Statement of Case. general rule that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted, (1 Grah. and Wat. on N. T., 327,) but such is not the position of the verdict in this case, and we therefore overrule the assignment. It is therefore ordered that the judgment of the court below be affirmed with costs. WILLIAM JUDGE, PLAINTIFF IN ERROR, VS. JOHN S. MOORE, DEFENDANT IN ERROR. 1. When demurrer to plea is sustained, with leave to defendant to plead over and he does plead over, he cannot assign the sustaining of the demurrer as error. 2. It is the duty of parties before they go into trial to see that the pleadings are made up, and when they go willingly before the jury, they must, unless the contrary plainly appears, be considered as having waived all demurrers undisposed of, and all pleas, replications, &c., on which the issues are not joined. 3. It is not error for the court to refuse an instruction not applicable to the issue joined or the evidence in the case. 4. It is not error to refuse a new trial for the purpose of enabling a party to procure testimony to impeach a witness. This case was decided at Marianna. Appeal from Santa Rosa Circuit Court. On the 26th Sept. 1855, Moore brought an action of assumpsit against Judge on a promissory note, of which the following is a copy, viz: On or before the first day of January next, I promise to pay John S. Moore or bearer, three hundred dollars, value received. January 23, 1854. WM. JUDGE. Defendant pleaded, first, failure of consideration, in this, that the said promissory note was given for the hire of two negroes, named Henry and Randall, for the year 1853, and Judge vs. Moore.-Statement of Case. that by the act and conduct of the plaintiff, he, the defendant, was deprived of the work and labor of the slave named Randall, for about ten months of that year, the plaintiff retaining the possession for that time. Second, partial failure of consideration on the same ground. Third, payment in full of the note sued on. Fourth, as follows, viz: day of "The said defendant, by Jordan and Chain, his attorneys, comes and defends the wrong and injury, when, &c., and says that the plaintiff ought not to have or maintain, his aforesaid action against him, because he says the said plaintiff on the A. D. 1853, contracted with said defendant, as follows, to-wit: that he, the said plaintiff, would let the said defendant have the possession of and work and labor of two certain negro men slaves, one by the name of Henry and the other by the name of Randall, the property of said plaintiff, for the term of twelve months from and after the date aforesaid, and for the price of three hundred dollars, payable on the first day of January next, ensuing the date aforesaid, and take the note of said defendant for the amount aforesaid, and in consideration thereof the said defendant executed and delivered to the said plaintiff the said promissory note, mentioned and described in the declaration of said plaintiff, for the possession of and the work and labor of the said negro men slaves; and the said defendant avers that the said plaintiff violated and rescinded said contract, by taking back the possession of and receiving the work and labor of the said man slave, Randall, for and during the time which he the said plaintiff had agreed to hire said slave to said defendant, except about two months of the time, thereby rescinding and making null and void said contract for which said promissory note set out and particularly mentioned in the said declaration of the said plaintiff was given, and this he is ready to verify-therefore he prays judgment whether the said plaintiff ought to have or maintain his aforesaid action against him." |