
    Scott, administrator, vs. Zachry.
    1. It must appear affirmatively that evidence was objected to in the court below, before this court will grant anew trial on account of its admission.
    2. The evidence being conflicting, this court will not control the discretion of the court below in refusing a new trial.
    Practice in the Supreme Court. Evidence. New trial. Before Judge Hall. Rockdale Superior Court. September Term, 1878.
    Reported in the decision.
    Geo. W. Gleaton, for plaintiff in error.
    A. C. MoCalla, for defendant.
   Warner, Chief Justice.

This case came béfore the court below on an affidavit of illegality to an execution, and upon the trial of the issue formed thereon, the only question was whether the defendant had paid to the plaintiff $250.00, which had not been credited on thefi.fa. On the trial of that issue, the jury found a verdict in favor of the defendant. A motion was made for a new trial on the grounds therein stated, which was overruled, and the plaintiff excepted.

The evidence was in direct conflict, the defendant swearing positively that he paid to the plaintiff $250.00 which he promised to credit on thThe plaintiff swore just as positively that the defendant never did pay him $250.00 on th efi.fa. The error of law • complained of is, that the court allowed the witness, Overby, to testify at the trial, that defendant said “ he had some money for plaintiff and went off to hunt him up.” It does not appear from the bill of exceptions, or in the motion for a new trial, nor in the evidence itself, that the admission of this evidence was objected to by the plaintiff at the time of the trial, aud that being so, it was too late to object to its admission as error here.

The evidence being in conflict as to the payment of the $250.00 on the fi.fa., there was no error in overruling the plaintiff’s motion for a new trial.

Let the judgment of the court below be affirmed.  