
    Taylor vs. White.
    June 20.
    Error to the Franklin Circuit; Henry JDavidge, Judge.
    Case 46. Assumpsit.
    
      Instructions, Nonsuit, Evidence, New Trial, Error,
    Oasestaled,
   J udge Trimble

delivered the opinion of the Court.

THIS was an action of assumpsit. Plea, non as-sumpsit, and issue; verdict and judgment for the plaintiff. The defendant prosecutes tiffs writ of error, and by the assignment of errors has taken several objections to the proceedings in. the court below. The first which we shall notice, grows out. of a bill of exceptions taken to the opinion of the court below, in refusing to instruct fhejury to findas incase of a nonsuit»

Where the evidence con" maintain the declaration, instructions notbc given. In such case, has refused te sot aside the court'cannot disturb it.

Triplett-, for plaintiff; Sharp, for defendant.

in answer to this objection, it is Sufficient to remark, that the evidence conduced to prove the cause of action as set forth in the declaration, and the weight of that evidence was properly left to the jury.

The next objection is, that the jury were sworn to try the issue joined, when in fact no issue was made up in the cause. This objection cannot be sustained. The record shows that the defendant in the court below filed the plea of non assumpsit* and that the plain tiff took issue upon the plea.

The last objection which we shall notice, is, that the court below ought to have granted a new trial, on the ground that the verdict was contrary to law. The answer given to The first objection, disposes of this, and shows that the evidence was of that character which ought to have been left to the jury, and that their vcr-diet, founded thereon, ought not to be distufbed.

The judgment is affirmed with costs. 
      
       Absent, Judge Haggin.
     