May Term, of the note and interest from date is 393 dollars. The

1854.

ARDERY

V.

POLLEYS.

judgment rendered is 418 dollars and 23 cents.

If the excess is remitted, the judgment as to the residue is affirmed; otherwise reversed; and, in either case, at the costs of Wilkerson.

J. F. Draper and J. S. Harvey, for the appellant.

Friday,
June 2.

ARDERY V. POLLEYS and Another.

The Supreme Court will not set aside the verdict of a jury, as being contrary to the evidence, when the evidence is conflicting.

APPEAL from the Decatur Circuit Court.

STUART, J.-Debt on a note for 400 dollars, by Polleys and Butler against Ardery and another. There were several pleas setting up a failure of consideration. Ardery also filed a bill of discovery, which was answered, and on the trial the bill and answer were used in evidence. The jury found for the plaintiffs, and judgment was rendered accordingly.

The evidence is all set out in the record. It presents the often occurring instance, of the losing party being dissatisfied with the conclusions of the jury on conflicting evidence. The settled rule is not to disturb such verdicts. DAVISON, J., having been concerned as counsel, was absent.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

J. Robinson, for the appellant.

A. Davison and J. Sullivan, for the appellees.

MCCALL and Another v. SEEVERS.

The fact that witnesses were allowed to testify who were disqualified by interest is not sufficient to reverse the judgment, if, under the present practice, they would be competent witnesses at another trial.

The fact that irrelevant instructions not tending to mislead the jury nor prejudice the rights of the objecting party, were given at a trial, is not sufficient to reverse the judgment.

If the verdict is fully sustained by the evidence, the Supreme Court will not set it aside on account of an erroneous instruction given to the jury.

ERROR to the Montgomery Circuit Court.

STUART, J.-Assumpsit upon the common counts. Pleas, the general issue and set-off. Verdict and judgment for Seaver, the plaintiff below, for 145 dollars.

At the proper time, Mc Call interposed a motion for a new trial, which was overruled.

The evidence is all in the record.

Several bills of exception raise for our consideration the admission of certain evidence, and the instructions of the Court.

The objection to the evidence was to the interest of the witnesses. But as the statute has removed that disability, we would not, for that reason alone, reverse the case. For these very witnesses would now be competent. 2 R. S., p. 80, s. 238. Besides, they executed releases respectively, which appear in the record, and which sufficiently restored their competency even under the old rule. The interest, at best, was but remote and contingent.

The instructions complained of are also spread upon the record. It is admitted very properly, in argument, that the instructions numbered three and four were irrelevant; and we do not see that they had any tendency to mislead the jury or prejudice the rights of Mc Call. It is therefore unnecessary to quote them.

Number six is in these words:

"That if the jury believe from the evidence that the plaintiff's intestate performed labor to any amount, under an agreement with the defendants that said intestate should remain on the land until he should be paid for such labor,

May Term, 1854.

MCCALL

V.

SEEVERS.

Friday,
June 2.

May Term, and the defendants put him out of possession before he was 1854. so paid, the plaintiff had a right to recover for the whole LAWRENCE- of such labor in this action."

BURGH, &c.,

RAILROAD

V.

The instruction is perhaps too broad. But as the verCOMPANY dict is in our opinion fully sustained by the evidence in the record, it is needless to analyze the law of the case as given in the Circuit Court.

SMITH.

Per Curiam.-The judgment is affirmed, with 3 per cent. damages and costs.

J. E. McDonald, R. C. Gregory and R. Jones, for the plaintiffs.

H. S. Lane and S. C. Willson, for the defendants.

Friday,
June 2.

DENTON V. ADAMSON.

ERROR to the Randolph Circuit Court.

Per Curiam.-Motion by a surety against his co-surety for contribution. Issues of fact. Trial by the Court, by agreement of parties. Finding and judgment for the plaintiff. There is no bill of exceptions; and the evidence is not upon the record.

The case presents no question to this Court.

The judgment is affirmed, with 10 per cent. damages and costs.

B. Mc Clelland, for the plaintiff.
D. Kilgore, for the defendant.

THE LAWRENCEBURGH AND UPPER MISSISSIPPI RAILROAD
COMPANY V. SMITH.

An appeal to the Circuit Court would not lie, under the R. S. 1843, on behalf of one of several defendants, from the judgment of a justice of the peace.

ERROR to the Dearborn Circuit Court. Per Curiam.-Proceeding by the Lawrenceburgh and Upper Mississippi Railroad Company against Smith and Dunn, for the condemnation of land, pursuant to the charter of said company. Appeal by Smith alone from the proceedings before the justice of the peace (1). Motion in the Circuit Court for the dismissal of the appeal. overruled. The appeal was taken in 1850.

Motion

The motion should have been sustained (2). The judgment of the Circuit Court is reversed, with costs. Cause remanded, &c.

G. H. Dunn, for the plaintiffs.

J. Ryman and E. Dumont, for the defendant.

(1) The charter of the company provided that either party might, at any stage of the proceedings, appeal to the Circuit Court of the proper county, as in other cases, and such court should appoint reviewers, &c., who might report at that or succeeding terms, in the discretion of the court, and the judgment of the Circuit Court should be final. Local Laws, 1848, p. 435. (2) Kain v. Gradon, 6 Blackf. 138.

DAVIS V. CRESWELL and Others.

ERROR to the Franklin Circuit Court.

Per Curiam.-Trespass. Plea, the general issue, and judgment for the defendants.

The defendants are overseers of the poor, and they procured a warrant under sections 13, 14 and 15 of the R. S. of 1843, pp. 357, 358, and attached property of the plaintiff for the support of his wife and children, from whom he had separated without cause. The warrant, with an inventory of the property seized, was returned to the Circuit Court, was there confirmed, and the property ordered to be sold, under the statute.

The plaintiff whose property was seized brings this action of trespass against said overseers, alleging that said proceedings under the warrant were void, because had

Friday,
June 2.

May Term, without notice to him, and because the warrant did not 1854. specifically name every article of property to be seized. We think the proceedings were conformable to the proPHILLIPS. Visions of the statute.

PHILLIPS

V.

The judgment is affirmed with costs.

J. Ryman, for the plaintiff.

J. D. Howland, for the defendants.

Friday,
June 2.

PHILLIPS V. PHILLIPS.

The defendant in a suit for a divorce, was not bound, by the R. S. 1843, to file his answer until the first day of the term to which the process was returnable.

The defendant in a suit for a divorce, could not, under the R. S. 1843, take depositions until after answer filed.

The defendant in a suit for a divorce was entitled, under the R. S. 1843, upon a proper affidavit, to have the cause continued to take depositions.

ERROR to the Vermillion Circuit Court.

DAVISON, J.-Bill by the wife against the husband for a divorce and alimony. The cause alleged was cruel and inhuman treatment. Process in the suit was served upon the defendant on the 23d of June, 1851, and returned at the next October term of the Circuit Court; at which term the defendant answered, putting in issue the material allegations in the bill, and thereupon moved for a continuance. In support of this motion the defendant filed his affidavit, stating, inter alia, that for want of the testimony of Robert Evans, William Holt and Jeremiah Hennis, he could not safely go into the trial of the cause at that term; that they resided without the state-Evans and Holt in Illinois, and Hennis in Virginia; that no subpœna had been issued for them, because they had not, at any time since the service on the defendant, been within reach of the process of the Court. The affidavit set out specifically the matter expected to be proved by the witnesses, which, if proved, would have been material upon the trial. He desired a continuance of the cause until the next succeeding term of