
    Roddy and another v. Kingsbury.
    It is proper for tho court to instruct the jury to disregard incompetent evidence, also to disregard a plea which presents no valid defense.
    Where there is either no evidence or none that is oomnetent to support any material issue in the ease, so to instruct the jury is no infraction of the statute which forbids the judge to charge upon tho weight of evidence. The statute applies only where there is .evidence competent for the jury to weigh. (Note 23.)
    Note 23 —Parker v. Loman, 10 T., 110; Reid v. Roid. 11 T., 585; Wintz v. Morrison. 17 T.. 372; Bond v. Mallon, 17 T., (¡30; Andrews ti.Smithwiok,20 T.,Ill; Austin® Talk, 20 T., 104; Mitchell v. Do Witt. 20 T., 204. When the court iu charging the jury must declare the legal effect, (if admitted facts, or of record^ or other written evidence, to such an extent as to substantially decido tho whole case, or if there is no evidence to support the issue, or the evidence is all on one sido and sufficient, it is not orror for the court to instruct the jury how to find. But (o go further than this is a denial of the right of frial by jury. (Reynolds r. Williams, 1 T., 3L1; City of San Antonio v. Lewis, 32 T., 405; Williams v. Davidson, 43 T., 1.)
    Error from Washington. The defendant in error brought suit against the plaintiffs in error upon a promissory note made by tho latter, payable to James It. Jenkins or hearer, upon which Jenkins by a special indorsement had guaranteed the solvency of the makers. The defendants answered by exceptions to the petition, a plea of failure of consideration, and a general denial. At a subsequent term (hey amended 1 heir answer and pleaded that since the last continuance they had been summoned as garnishees by a writ issued by a justice of the peace, at. the. suit of one Wilson Z. McFarland, to appear before the justice to answer touching their indebtedness to the plaintiff. The court charged the jury that they should not regard the plea of garnishment and the only evidence offered under it, marked B, to which the defendants excepted. The defendants asked the court to charge the jury “that the plaintiff cannot recover without showing-that he paid a valuable consideration, as ho lias averred in his petition, not having sued as bearer, but as a holder for a valuable consideration, which charge the court refused, but charged the jury that tile plaintiff’s possession was jwima facie evidence that lie was I,lie lawful owner of the note, and had given a consideration for it,” to which the defendants also excepted. There was a verdict and judgment thereon for the plaintiff, and the defendants obtained a writ of error. „
    
      Gillespie, for plaintiff in error.
    
      Lewis & Rivers, for defendant in error.
   Wheeler, J.

There is no statement of facts and no error apparent upon the record. It does not appear what the evidence was which is referred to in tho bill o£ exceptions. It was proper for the court to instruct the jury to disregard incompetent evidence and a plea which presented no valid defense to the action. Where there is either no evidence or none which is competent to support any material issue in the case, so to instruct the jury is no infraction of the statute which forbids that the judge shall charge upon the weight of evidence. This rule can only apply where there is evidence competent for the jury to weigh. The rulings of the court disclosed by the record appear to have been substantially correct. And the objections to the judgment presented by the assignment of errors are not deemed of a character to require further notice.

Judgment affirmed.  