
    Cage and Black, for the use of Ramsey, surviving executor of Brady, v. Ellis, adm’r de bonis non of Waters.
    Where a cause is submitted to the Court, without a jury, and the defendant prays the opinion of the Court, whether the evidence does not raise a presumption that the note sued on had been paid and the Court gave that opinion, and found for defendant — held, that a writ of error would not lie, as no exception was taken to the admission of the evidence, but to the weight of it.
   M’Girk, C. J.

delivered the opinion of the Court.

This was a case originally tried before a Justice of the Peace, and brought to the Circuit Court, and judgment there for the defendant, Ellis.

It appears by the record that in April, 1806, Waters made his covenant to deliver some lead to Cage & Black, and that Ramsey found this note amongst the papers of Brady, when he came to the administration of his estate, upon which this suit was brought against Ellis, administrator of Waters.

The point presented for the consideration Of the Court, is saved by a bill of exceptions, and it is this: the evidence was submitted to the Court in place of a jury, and the Court found the note was paid. When the evidence was gone through, the defendant prayed the opinion of the Court, if 'the evidence did not raise a legal presumption, the note was paid. The Court said, the evidence did raise such presumption, and gave judgment accordingly; to which opinion the plaintiff excepted.

It is unnecessary to inquire, whether the Court found a right verdict, as it is settled law, that a writ of error will not lie to the verdict of a jury. If the Court erred it was not in admitting incompetent evidence. No exception is taken to the admission of the evidence, but to the weight of it. But if the weight of this evidence could now be considered by the Court, we think the verdict is right, and if the motion for a new trial was now before us, we would not grant any.

The judgment is affirmed, with costs. Let an order be made, that Ramsey pay the costs, on or before the neift term of this Court,  