Mr. Chief Justice ENGLISH delivered the opinion of the court. Patterson, Marshall & Co., of Memphis, sued Hirsch & Co., of Batesville, on a note for $512 73, bearing date April 3d, 1857, and due at sixty days. The case was tried by a jury upon issues to the pleas of nil debet, payment, and set-off; verdict and judg ment in favor of plaintiffs for $308 49, balance of debt, and $37 damages. The defendants moved for a new trial, which was refused, and they excepted, and appealed.

Before the trial, a portion of the deposition of W. E. Milton, taken and published by appellants, was suppressed, on the motion of the appellees, and this is made one of the grounds of the motion for a new trial.

Passing over the fact that the motion to suppress was made and sustained before the parties went into the trial, or the issues were made up, and the decision of the court was not, therefore, matter of surprise to appellants; and passing over the further objection that the deponent stated his impressions, without stating their sources, or the facts from which they were derived; it is manifest that if the portion of the deposition which was suppressed had been read to the jury, it could have been of no benefit to the appellants. If it tended to prove anything material, it was that appellants were not entitled to a credit which they in fact received.

Upon the trial, appellants produced an account current between the parties, in the handwriting of one of the appellees, commencing November 6th, 1856, and ending December 11th, 1857, covering an item, for which the note sued on is supposed to have been given, and showing a balance in favor of appellees of $308 49, the amount of debt for which the jury rendered their verdict. In this account the appellants are credited with proceeds of their draft in favor of appellees, on George Philler,

Hirsch & Co. vs. Patterson et al.

[JANUARY

$453, and they insist that they should have been credited with $478 50, the full amount of the draft.

The draft was drawn 24th August, 1857, at sixty days, and on the day it was drawn appellees gave appellants a receipt for it, stating that the proceeds of the draft were placed to their credit. The appellants are credited in the account current with proceeds of draft, $453, on the day it was drawn, and sixty days before its maturity, and the jury must have concluded that the draft was cashed at that time. It was payable in bank. This was a matter for the jury upon the facts before them, and we shall not disturb their finding on that point.

The appellants also produced in evidence an account between the parties, in the handwriting of one of the appellees, composed of a number of items, commencing November 7th, 1856, and ending 18th February, 1857, footed up balance against appellants $724 69, under which is written a receipt, as follows: Rec'd payment by note at sixty days, from Feb'ry 18th, 1857. PATTERSON, MARSHALL & CO.

The appellants also produced, and read in evidence, the following instrument, which they proved to be in the handwriting of one of the appellees:

$724 69.

MEMPHIS, 18th Feb'y, 1857.

Sixty days after date we promise to pay to Patterson, Marshall & Co., or order, seven hundred and twenty-four 69-100 dollars, for value received, payable at Southern Bank of Tennessee, in Memphis.

The items which compose the account last referred to, extending from November 7th, 1856, to February 18th, 1857, are also embraced in the account first referred to, commencing Novem; ber 7th, 1856, and ending December 11th, 1857, the debits of which are footed up $2,639 71.

Appellants insist that, inasmuch as the items of the account first rendered, are charged in the account last rendered, they should have been credited with the note for $724 69, by which the account first rendered appears to have been closed; but that they were not so credited.

It does not appear that the note for $724 69, produced in evidence by appellants, was ever signed by them, or was in the hands of appellees after it was written.

It is probable that the jury concluded from the evidence that the note was sent to the appellants, by the appellees, with the first account for their signature, but that it was never signed and returned, and hence the second account was made out, embracing the items included in the first. There was certainly some ground for the jury so to conclude.

The appellants proved that the appellees collected for them, of an insurance company of Philadelphia,$1,645, and credited them, in the account last rendered, with but $1,612 90 of the sum so collected, and this error, it seems, went into the verdict of the jury.

If the appellees will enter a remittitur for $32 10, excess of finding, the judgment will be affirmed, under the rule; otherwise it must be reversed, and a new trial granted.

INGRAM VS. MARSHALL ET AL.

The jury are the proper judges of the effect of testimony, and of the weight to be given to it in sustaining any proposition; and an instruction which undertakes to say what weight shall be given to evidence, is erroneous.

Although an instruction may be erroneous, yet if, upon the whole record, the appellant was not injured by the ruling of the court, the judgment will not be reversed.

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Ingram vs. Marshall et al.

Appeal from Union Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

CARLETON, for appellant.

Mr. Justice FAIRCHILD delivered the opinion of the Court. The appellant, with another person, made a note to A. H. Moffit, or bearer, on which the appellees brought an action of assumpsit against the appellant. He pleaded that the note and two hundred dollars in cash were given to Moffit for eleven horses and four mules, that were warranted by Moffit to be sound, that four of the horses and one mule were unsound, which in the sale were rated at one hundred and fifty dollars each, by which means the consideration of the note to the amount of seven or eight hundred dollars had failed.

After proof by the defendant in support of this plea, the plaintiffs, to rebut it, proved by Tatum that upon presentation of the note to the defendant, he stated that he had an off-set to it of one hundred and twenty-five dollars, and that he would pay the note when it should become due, lessened by the amount claimed to be deducted.

The court instructed the jury, at the request of the plaintiffs, that if the defendant, in full possession of the facts of the unsoundness of the horses, agreed to pay the note, except one hundred and twenty, or one hundred and twenty-five dollars, they must find against him to that amount; to which, the defendant objected.

The court also refused to instruct the jury, as asked by the defendant, that if they believed the admission of the defendant to Tatum, was merely a proposition to compromise, they might disregard it, or give it such weight as they should think proper, or that, at most, it was but evidence to be considered with other evidence.

Although we think there is no reason to impute to the con versation of the defendant with Tatum, the character of a pro

position for a compromise, the jury were the proper judges of the effect of the testimony, and should they regard it as such a proposition, the consequence contained in the instruction would follow, in the jury giving it such weight as the meaning that seemed proper to them should require. And the instruction given on the part of the plaintiff seems to approach the line of instructing the jury what weight to give to evidence.

This instruction of the court, and its refusal to instruct, though only slightly erroneous, might call upon us to reverse the judgment, upon the defendant's motion for a new trial, did it not appear from an examination of the whole record that the defendant was not injured by these rulings of the court.

Upon the plea of breach of warranty, which was the one upon which the defendant introduced evidence of the unsoundness of the four horses and of the mule, the defendant proved his loss upon these animals. In the estimate by us, each of the eleven horses and five mules is taken to have cost one-fifteenth of fourteen hundred dollars, that being their aggregate price in the sale by Moffit. The plea alleges that the unsound horses and mule were estimated in the trade at one hundred and fifty dollars each, but there is no proof of this; and it does not seem reasonable that, among horse dealers, the five animals that proved to be unsound were rated at one hundred and fifty dollars each, while the ten sound ones were counted at eighty dollars a head. On this mode of computation, the defendant lost about one hundred and thirty-eight 33-100 dollars; that is, about sixtyfive and a third dollars on the fine looking sorrel horse sold to the defendant's brother, about fifty-six and two-thirds dollars on the two horses sold to Bradly, and about eighteen and a third dollars on the mule. Taking out of this the profit of forty or forty-seven dollars, the defendant made on the horse swapped to Richardson, and he seems to have had better success than his evidence required, when the jury reduced the verdict from the amount due on the note, about twelve hundred and forty-six dollars, to the sum found, one thousand and eighty-eight 30-100 dollars.