
    J. D. Allen et al v. James B. Upton.
    Depositions — Exceptions to — Waiver.
    After exceptions to depositions have been sustained, the depositions withdrawn, and then by agreement of the parties, the plaintiff is permitted to read the depositions upon the trial of the cause, the objections are thereby waived, and cannot be available for reversal in the Court of Appeals.
    Evidence — Irrelevant and Incompetent.
    Though it be competent to prove by a witness what the laws of Congress are, and Government rights, if irrelevant and not pertinent to the issue, such evidence should be rejected on objection to same.
    APPEAL PROM WARREN CIRCUIT COURT.
    October 6, 1868.
   Opinion of the Court by

Judge Peters:

A careful examination of this record bas resulted in the conclusion that there is no substantial error in it available to appellants for a reversal.

Bowman was a defendant to the action, had a direct interest in behalf of himself in the issue and was therefore incompetent, Sec. 670 Giv. Go.

The law of the case in the instructions submitted to the jury by the court, was properly expounded, or perhaps it might with more propriety be said, that the law as submitted in the instructions to the jury was at least as favorable to appellants as they had a right to ask it, and they are not prejudiced thereby.

After exceptions to the deposition of Absalom Upton had been sustained by the court, the exceptions were withdrawn, and by agreement of the parties the plaintiff below was permitted to read the deposition of said Upton on the trial, so that whatever objections there might have been to the deposition, they were waived, and cannot be available now in this court for reversal.

As to the objection made to Hobson’s evidence, he stated what the army regulations were in relation to substitutes, with which he stated he was familiar, and from his connection with the army he must have been, and no sufficient reason is shown, and none is perceived why be was not competent to prove them, and besides be read tbe orders on tbe subject agreeing witb bis statement, wbicb were read without objection; it is true after they were read appellants excepted to them as incompetent; but that was not sufficient, tbe objection should have been made when tbe orders were offeffred, as has been repeatedly held by this court.

Harney, for appellant.

Rodman, for appellee.

Tbe objection of plaintiff to tbe interrogatories propounded by appellants to Hobson were properly sustained by tbe court for even if it were competent to prove by tbe witness what tbe Government bad a right to do and thereby prove what a law of Congress is by tbe witness, tbe evidence was irrelevant and not? pertinent to tbe issue, and was properly rejected on that account.

Upon the subject of tbe verdict being contrary to tbe evidence it need only to be said that tbe evidence was conflicting and if it did not preponderate on -the side of tbe verdict; tbe finding of tbe .jury cannot be regarded as palpably against tbe evidence, and this court has no power to interpose.

No error is perceived prejudicial to 'appellants.

Wherefore, tbe judgment is affirmed.  