
    Mercer vs. Clark.
    
      November 19.
    Th’t the note decía- ed on was given on a Cet-tlement of ac. counts, 8c that balance was produced by a ir.tftake, when in truth nothing was lue, is a good plea-
    The evidence to fuftain the jblea being fuf ficient, and the jury having found againft the plea, ver-diet and judg. ment fet ailde and new trial awarded.
   OPINION of the Court, by

Judge Owsley

This action was brought by Clark in the court below on a note executed bv Mercer for one hundred dollars; Mercer pleaded that the note was executed by him to secure the payment of the amount which fell due to Clark by a settlement of accounts which was made by them ; and avers that the balance was produced against him by mistake, when in truth and in fact on a correct settlement of their accounts nothing is owing by him to Clark. An issue was joined to this plea anti a verdict found by the jury in favor of Clark for the amount of the note, &c. A motion was then made by Mercer for a new trial, but was overruled by the court and judgment awarded on the verdict of the jury ; to reverse which judgment Mercer has prosecuted this writ of error.

The whole of the evidence given on the trial of this cause in the court below is made part of the record by exceptions taken to the opinion of the caurt in rejecting the application of Mercer for a new trial. Whether, therefore, a new trial should have been awarded, is the only inquiry necessary to be made in the decision of this cause.

The account settled by the parties was given in evidence. By it there appears to have been an account raised against Mercer for § 150 25 cents ; and by the evidence of a witness in the cause, Mercer proved he was entitled to a credit of 26 pounds some shillings, the amount of his account against Clark, and that he in part pay of the demand against him had given Clark an order on Worden Pope, which would be paid on application ; and at the time of settlement a stun of money, the amount not recollected by the witness, was paid by Mercer. From this evidence, had no other been given on the trial, it is obvious there cannot be due Clark from Mercer the amount of the note. But it is further manifest, from a statement attached to the settled account, that an error was committed in reducing the ámount of Clark’s account of one hundred and fifty dollars against Mercer, into pounds. The account, when reduced, instead of being £½5,. is made £75. This circumstance, when connected with the evidence in the cause, demonstrates clearly a mistake in the settlement.

We think therefore the evidence does not warrant the finding of the jury, and that a new trial should have been granted.

The judgment must be reversed with costs, the cause remanded, and a new trial awarded for such further proceedings to be had as may be consistent \VitH this opinion.  