
    Sarah Goodall, Defendant in Error, v. E. L. Tricky, Plaintiff in Error.
    
      Practice — Instruction.—Instructions not supported by the evidence are properly refused.
    
      Error to Cole Circuit Court.
    
    
      White, for defendant in error.
    
      Smith, for plaintiff in error.
   Dryden, Judge,

delivered the opinion of the court.

This was a suit brought- by Sarah Goodall on a note for eighty dollars made by the defendant, payable to “ EL Clay Goodall or Mrs. Sarah Goodall.”

The defence set up in the answer was, in substance, that the defendant held two notes by assignment on H. Clay Goodall for a larger amount than the note sued on, and that prior to the commencement of this suit he had credited the note in suit on the two notes which he so held. On this state of the record the parties went to trial, when the defendant read one of the notes set up in his answer, but gave no evidence whatever touching the alleged crediting of the note in suit. The defendant asked an instruction, which was refused, and the court then rendered a verdict and judgment for the plaintiff for the amount of the note, and the defendant has brought the case here by writ of error.

The only error complained of is the refusal of the court to give the instruction which was asked.

There was no evidence in the case in regard to the pretended credits on which to base the instruction, and the instruction was therefore properly refused. There is no error in the record, and the judgment of the Circuit Court is affirmed.

The other judges concur.  