#### David L. Allen, plaintiff in error, v. Edward O. Smith et al., defendants in error.

Error to Macon.

Where, upon the trial of a cause, the evidence is contradictory, the jury have a right to weigh it, and decide as the balance may preponderate; and unless the decision is manifestly against the weight of evidence, the verdict will not be disturbed.

This cause was heard in the Court below, at the October term, 1841, before the Hon. Samuel H. Treat and a jury. Verdict and judgment were rendered for the plaintiff, for $46.

C. Emerson, for the plaintiff in error.

L. Trumbull, for the defendants in error.

Breese, Justice,

delivered the opinion of the Court:

The only question presented for the Court in this case is, did the Court below err in overruling the motion for a new trial. From the bill of exceptions, it appears that the evidence was contradictory. In such cases, the jury have the right to weigh it, and decide as the balance may preponderate, and unless they decide manifestly against the weight of evidence, a verdict will not be disturbed.

We cannot say that they have thus decided, consequently the motion for a new trial was correctly refused. This being the only error assigned, and there being no probable cause shown, the motion to make the writ of error a supersedeas is disallowed with costs.

Motion denied.