
    BENNETT vs. ODOM.
    1. Where the question is one of fact only, turning upon the credit of the witnesses, and there is ample testimony to support the verdict, it will not be disturbed — especially where material evidence, in the power of the defendant, has not been produced.
    2. If a defendant pleads a tender, and the jury find a larger sum due, the amount of money paid into the Clerk’s office by the defendant, and which he admitted to be due, may be ordered to be credited upon the judgment.
    
      Certiorari, from Clay county. Decided by Judge Kiddoo, September Term, 1859.
    Zadock Odom commenced his action against James W. Bennett, on account, for $12 00 in a Justices’ Court. The defendant pleaded the general issue.
    On the trial, plaintiff therein testified that he hired Bennett some slaves in 1858, and that the account sued on is a correct account of the amount of time that each slave worked for defendant; and that defendant never paid said account in full, but there is a balance of $12 00 now due him thereon. The account of hire was kept in an almanac; that he went to defendant’s house twice for a settlement, but does not consider that they ever had a final settlement; never said he was satisfied with the settlement; said all the time there was a mistake of twelve days by defendant.
    Martin Bennett testified in behalf of defendant, that he was present and heard plaintiff and defendant talk over their settlement, and thinks it was understood that defendant owed plaintiff six dollars; was present all the time and did not hear plaintiff express any dissatisfaction as he considered it.
    George Williams also testified, that he was present and made the calculation, and it was then considered the defendant owed plaintiff six dollars; did not hear plaintiffs say he was satisfied; defendant would have paid plaintiff the six dollars at the time, but could not make the change; heard plaintiff say, when he left, there was some mistake.
    The jury having found for the plaintiff the amount claimed by him, the defendant carried the case to the Superior Court by certiorari, when the Court ordered the same to be dismissed and the six dollars paid by defendant, in Court on filing his plea credited on plaintiff’s judgment. Defendant’s counsel excepted thereto.
    Cullens & Turnipseed, for plaintiff in error.
    Wells & McLendon, contra.
   By the Court.

Lumpkin, J.,

delivering the opinion.

The amount of hire owing by Bennett to Odom was purely a question of fact, depending on the testimony of the plaintiff on one side and two witnesses on the other. The jury have seen fit to give credit to the plaintiff. This they had a right to do, and the Circuit Judge has refused to disturb their verdict. We do not feel at liberty to control his opinion in this case.

There was one great oversight on the part of Bennett. Odom swears that he noted down in an almanac the time the negros worked. This memorandum was used by the parties in both settlements. It was left with Bennett. At any rate, he could have had it on the trial. Why was it not there to compare with and correct, if erroneous, the account sued on by Odom ?

We see nothing wrong in the direction given by the Judge in the case.  