
    T. T. Fortune, Trustee, et al v. Spencer Small et al.
    Appeal and Error — Conflicting Evidence — Province of Jury.
    Where the evidence is conflicting it is the province of the jury to decide' which side has "the preponderance and the court of appeals has no power to interpose, after the court below has refused' to do so.
    APPEAL FROM TODD CIRCUIT COURT.
    October 9, 1869.
   Opinion of the Court by

Judge Peters:

The only errors complained of are, first, the admission of the two Smalls to testify in behalf of appellee; and, second, that the verdict is against the evidence.

If the credit for his account is allowed to James Small as he claims, the means of paying other creditors will be diminished, and the firm will owe it to them, and if he fails to get the credit it mil go to pay others debts, and the firm will owe him the amount; so that the interest of the witnesses is equipoised. The 'relation which they bear to appellee must go to their credit, and not to their competency.

As to the second question, the evidence was conflicting, and it was the province of the jury to decide which side had the preponderance, and having done so, this court has no power to interpose, and set their finding aside, after the court below had refused to do so.

Kennedy, for appellants.

Petrie, for appellees.

Wherefore, the judgment is affirmed.  