
    Isaac Adair v. James M. Graham.
    Where the petition for certiorari stated the evidence before the Justice, and it appeared that the case turned on a conflict between the testimony of a witness introduced by the plaintiff, and that of the plaintiff himself, and the Justice gave judgment for the plaintiff, on appeal from the judgment of the District Court dismissing the petition, this Court said, The case was one of conflict of evidence; and though the presumption is that the witness who had no interest in the suit was entitled to more credit than the plaintiff, yet it was for the magistrate to judge of their credibility, from his knowledge of the witnesses and other circumstances occurring at the time and material to a just conclusion as to the weight to be attached to the evidence of the witnesses respectively.
    Appeal from Houston. Heard below before the Hon. John H. Reagan.
    
      G. F. Moore, for appellant.
    It is respectfully submitted, that it was not competent for appellee to contradict his own , witness, when he did not swear to suit him. See also 6 Tex. R. 311; 9 Id. 443; Id. 432.
    
      W. M. Taylor, for appellee.
   Hemphill, Ch. J.

The appellee sued appellant before a Magistrate for'the recovery of thirty-nine dollars, alleged to be due on a contract for digging two wells, viz : thirty dollars, the value of two beef steers, for digging the first twenty-five feet, and nine dollars for digging nine feet deeper. A witness introduced by the plaintiff below, proved, in effect, the contract to have been that the plaintiff was to dig two wells, find water and finish the wells ; that he did not find water. The plaintiff then took the stand as a witness, and proved that he was to dig two wells twenty-five feet deep, for whicch the defendant was to pay him two beef steers ; that it was further agreed between him and defendant, that if he would go on and finish the wells, the defendant would pay at the usual rate a foot, until water was found; that he dug each of them thirty-four feet. The first witness proved that the steers were worth $12 50 cents a-piece. The plaintiff had judgment for twenty-five dollars. The defendant removed the cause by certiorari to the District Court, detailing in his petition the facts that were in evidence before the' Justice. The petition, on motion, was dismissed. There is believed to have been no error in this ruling of the Court. The case was one of a conflict of evidence. and though the presumption is that the witness who had no interest in the suit, was entitled to more credit than the plaintiff, yet it was for the Magistrate to judge of their credibility, from his knowledge of the witnesses, and other circumstances occurring at the time and material to a just conclusion as .to the weight to be attached to the evidence of the witnesses respectively. The judgment of the Justice is not without nor (materially at least) against the weight of the evidence, and it is therefore ordered that the judgment dismissing the petition be affirmed.

Judgment affirmed.  