#### Charles P. French, Appellant, v. Henry Lowry, Appellee.

APPEAL FROM MACOUPIN.

This court will not disturb the finding of the Circuit Court or of the jury, upon the facts, unless the finding is clearly wrong.

The appellee sued the appellant before a justice of the peace, and obtained judgment for $44, which was appealed, and the following bill of exceptions was submitted as an abstract of the case.

Be it remembered that tiiis cause was tried by the court by the consent of parties, and that the following was all the evidence in the case:

The plaintiff proved by two witnesses that they had at different times and shops, since the occurrence of difficulty between the parties, finished 16 pairs of window blinds for the defendant, the materials of which (excepting the slats for 5 or 5i pairs) they obtained at an unfinished house of the defendant, at which the plaintiff had been working. The account that he offered in evidence was in the words and figures following, to wit:

Doctor C. P. French, Dr.

1855. To Henry Lowry, viz.:

April 8th — To dressing up materials for 18 pr. window blinds......#30 00

“ “ — “ dressing up materials for 6 panel doors ........... 6 00

“ “ — “ dressing up materials for 4 door frames............ 2 00

“ “ — “ getting out lumber for stairs.................... 6 00

-#44 00

Of the last three items in this account, said witnesses knew nothing. They testified that after the occurrence of difficulty between the parties, the plaintiff told them that the blinds were to be made and hung by contract, at $2.50 a pair, and that the relative value of dressing materials for blinds was two-thirds of the whole value. The plaintiff proved by another witness that about the 1st of March, 1855, he, at the instance of the plaintiff, presented an account to the defendant for about $40 or $45, and that the defendant said that a part of it would not be due until Christmas. The witness could not speak particularly of the items of the account. The defendant proved by a justice of the peace of the county, who produced his docket and papers in court, that the plaintiff sued the defendant on an account in May, 1855, for carpenter’s work, for some $15, the items of which were not embraced in the account sued on in this case; that a set-off for house rent was relied upon by the defendant ; and on trial of the cause, on evidence of the plaintiff and witnesses, a judgment was rendered in favor of plaintiff for some $5, which was receipted for by him on the docket.

*159Oe the foregoing state of facts, the court affirmed judgment in favor of the plaintiff for $44, to which decision of the court the defendant by his counsel at the time excepted.

This cause was heard before Rice, Judge.

D. A. & T. W. Smith, for Appellant.

J. M. Palmer, for Appellee.

Skinner, J.

Lowry sued French, before a justice of the peace, on an account for carpenter work and materials furnished, and recovered judgment for $44. French appealed to the Circuit Court, where the cause was tried by the court and the judgment below affirmed. On the trial, the plaintiff proved by a witness a portion of his account for work done and materials furnished, and then proved by another witness that in March, 1855, he, witness, at the plaintiff’s request, presented his account of from forty to forty-five dollars to the defendant for settlement, and that the defendant (not disputing the correctness of the account) said a part of it would not be due until the next Christmas. The defendant proved that the plaintiff, in May, 1855, sued him before a justice of the peace on a different account, for fifteen dollars, and recovered judgment for five dollars.

We cannot disturb the finding of the court. It is impossible so fully and certainly to comprehend the merits of a cause, presented by the parties in open court and investigated directly through the medium of witnesses before the court, thus affording opportunity of viewing all the surroundings of the controversy and of judging of the means of knowledge of facts and fairness of the witnesses, on reproduction of the case by bill of exceptions. Therefore, this court will not disturb the finding of the Circuit Court, or the verdict of a jury upon the facts, unless that finding is clearly wrong. A portion of the plaintiff’s account was proved, and upon presentation no complaint was made concerning it by the defendant, except as to the time of payment; and the suit and recovery proved by defendant, in bar, was upon a different demand, which could not embrace another demand not then due.

Judgment affirmed.