
    The Mississippi Union Bank, use of Hiram G. Runnels and John Grimball, Administrators of William Trahern, deceased, vs. Thomas Graves et al.
    It is too late, after evidence has been admitted on the trial, without objection, to take any exception to it on an application for a new trial.
    In an action by a bank against G. and W. and M., copartners, and F., all joint makers of a note for $500, due January I, 1840, payable to'the bank; the defendants plead payment, and on the trial read, without objection, a memorandum signed by the teller of the bank, to this effect, “ bank in acc. with G. and W.; 1841, March 25th, to cash $600; interest on same, $30 ; to be applied to payment of note; ” the jury found for the defendants; held, that the verdict was warranted by the testimony.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    On the 30th of April, 1841, the Mississippi Union Bank, for the use of Hiram G. Runnels and John A. Grimball, administrators of William Trahern, deceased, sued Thomas Graves, James E. White, William J. Wells and Austin Morgan, partners under the style of Wells & Morgan, and George Finucane, as makers of a note payable to the bank for $500, dated May 6, 1839, and due on the first of January, 1840.
    The defendant plead, 1. Non assumpsit. 2. Payment at the maturity of the note. 3. Payment after maturity, and before action brought. The last two pleas' were accompanied with notice, that on the trial the defendants would offer the following memorandum in evidence.
    
      Dr. Miss. Union Bank in account with Graves &, White. Cr.
    1841. March 25th. To cash.$600
    Interest on same ... 30
    To Cr. $630
    To be applied to payment of note,
    William T. Wynn, Teller.”
    On the trial the plaintiffs read the note sued on; the defendants, after proof of Wynn’s hand-writing, and of his being at its date the teller of the bank, and the officer who usually received payments and deposits and gave vouchers for the same, read the above memorandum. This was all the evidence. The jury found for the defendant; the plaintiffs moved for a new trial, which being overruled, they sued out this writ of error.
    
      J. J. Deavenport, for plaintiffs in error,
    insisted,
    1. That the verdict of the jury was contrary to the law and the evidence.
    2. That the evidence given by the defendants did not support the issue, while that given by plaintiffs was conclusive of it.
    3. The proof of defendants did not identify the note to which the payment was to be applied; the credit was one to Graves &■ White; the note was one of the firm; the credit was of a greater amount than the note sued on; the dates and parties were different ; there was nothing to connect or identify them.
    4. The mere, certificate of the teller was not evidence; he ought to have been sworn himself.
    
      D, Shelton, for defendants in error.
    L There is in fact no question of law raised by the record. There was no evidence improperly admitted or rejected, for none was objected to by either party. There was no charge improperly given or refused by the court, for none was asked by either party.
    2. On the question of fact,
    1st. In cases brought up on the overruling of a motion for a new trial, such new trial will not be granted by this court, unless it is clear that justice has not been done in the court below. 7S. & M. 723; 1 lb. 381.
    
    2d. Nor will it be granted unless it be clear that the jury found contrary to the weight of the evidence. 7 S. & M. 723; 1 lb. .157.
    In this case, so far from its being clear that justice has not been done, it is clear that it has been done, for no one can really doubt on the evidence but that the note was actually paid to the bank. As between the bank and G. & W., therefore, there is no. question but that justice has been done, G. & W. are. entitled to the full benefit of all payments, set-offs, <fcc., made or had before assignment, or before notice of the assignment. H. & H. 373, sec. 12. In this case there was no proof of the assignment, or of notice thereof before suit was brought, which was about two months after G. & W. paid the bank.
    In this case, so far from its being clear that the jury found contrary to the weight of evidence, it is clear that the verdict accords with the evidence.
    3d. But it'is insisted by the plaintiffs that our proof did not-apply to the note in suit. If it did not, then it must have, applied to some other note, or the voucher was inadmissible, because fit did not describe the note sued on with .sufficient certainty. The jury could not go beyond the proof to conjecture that such other note existed; if it were true, it was a fact susceptible of proof. No proof of it was made; the negative of it could not be proved, for G. & W. were incompeteht as witnesses, and they were the only persons who could have sworn that they never made another such a note.'
    Upon the evidence admitted without objection, the jury could not have found a different verdict.
   Mr. Justice ThacheR

delivered the opinion of the court.

Suit upon a promissory note for $500 due January 1, 1840, was instituted against its makers, Graves, White <fc Wells, and Morgan, carpenters, and Finucane. They pleaded non-assump-sit, and payment ad et post diem, with.notice of payments. Upon the trial the plaintiff introduced the note in evidence, and the defendants having proved the signature of William T. Wynn, and that he was the teller of the Union Bank, introduced in evidence without objection, this instrument:

“ Dr. Miss. Union Bank in account with Graves & White. Cm
1841. March 25th. To Cash.$600
Interest on same. 30
To Cr. $630
To be applied to payment of note.
Wm. T. Wynn, Teller.”

Yerdict and judgment were rendered for the defendants, and thereupon a motion for a new trial was made and overruled, and hence this writ of error.

The grounds upon which a new trial was claimed were, that the verdict was not supported by the evidence, but was contrary to the evidence; and that the evidence of the defendants did not support the issues on their part, while that of the plaintiff was full, clear, and not impeached or contradicted.

As to these grounds, it may, in the first instance, be replied, that if the evidence of the defendants did not support their issues, it was irrelevant to the cause, and should have been objected to when offered. But it is manifestly too late, after evidence has been admitted without objection, to take any exception to it on an application for a new trial. 5 Cow. 173: 11 Johns. 128; Carter v. Taylor et al., 6 S. & M. 367.

The instrument signed by the teller of the bank, being before the jury without objection, they were warranted in deeming it a legitimate part of the evidence, and so found it to be evidence of payment of the note in full, which accorded with the defendant’s pleas.

In the attitude also of this case, the record does not present enough matter, set forth in proper legal shape, to authorize us to disturb the verdict.

The judgment is affirmed.  