
    John A. Duff, etc., v. Robt. W. Rose.
    New Trial — Impeachment of Witnesses — Absence of Party.
    The absence of appellant from the trial of the cause is no reason why a new trial should have been allowed him. The fact that he would have been able to impeach some of the witnesses who testified against him would not have entitled him to a continuance.
    
      Contracts — Misrepresentation—Instructions.
    It was not erroneous to instruct to the effect that if appellant agreed to take ten additional hogs to make up the supposed average of two hundred pounds per head, nothing should be found on account of misrepresentation as to the weight, made by appellee.
    APPEAL PROM ESTILL CIRCUIT COURT.
    September 4, 1872.
   Opinion by

Judge Lindsay:

The absence of the appellant front the trial of this cause is no reason why a newi trial should have been allowed him. The fact that he would have been able to impeach some of the witnesses who testified against him would not have entitled him. to a continuance had he made application therefor upon that ground alone.

Besides this, the repeated continuance had upon his motions very strongly indicates that his principal object in the litigation was delay.

Appellant has no right to complain that certain portions of his depositions, which were mere recitals of hearsay testimony, were excluded, nor that his motions to exclude competent testimony taken by appellee were overruled.

The fact that one witness, adopted the testimony or deposition of another, amounts to> nothing in view of the fact that such witness was cross-examined at length by appellant.

Instructions Nos. 1, 2, and 3, given by the court, present the law of this, case even more favorable to appellant than should have been done, in view of the fact that the measure of damages fixed in case the jury should find for him on his counterclaim, embraced the expense incurred in driving the unspayed sows, in addition to the difference in value at the time and place of delivery.

It was not erroneous to instruct to the effect that if appellant agreed to take ten additional hogs to make up the supposed average of two hundred pounds per head, that nothing should be found on. account of representations as to weight made by appel-lee. This is not in conflict with the instruction first given to the effect that he was responsible for representations as to size of hogs not seen by appellants.

But independent of this appellant voluntarily received and kept all the hogs after they had been gotten out of the field, and when there was no pretense that they co.uld not be examined by himself or his agent.

Lilly, for appellants.

Caldwell, for appellee..

Feeling satisfied that the judgment appealed from is consistent with the substantial justice of the case it must be affirmed.  