#### John H. Alley v. Noah Hampton,

From Rutherford,

Dec. 1828.

When a verdict is against the evidence, a new trial can be granted only by the Judge who tried the cause.

This was an action of assumpsit, tried on the last circuit,before his Honor Judge DaNIEx,. On the tria!, one Jones swore that he applied to the Defendant for g25, which he owed him — the Defendant went with the witness to the Plaintiff, and requested the latter to pay the witness the money — this was refused, and the Plaintiff then said to the Defendant “you are greatly indebted to me now,” to which the latter replied, “I admit I owe you at least 500 dollars, and if you will pay this ¿sum to Jones for me, I will settle all with you, before I leave the country.” The Plaintiff then paid the witness the money.

After the charge of the presiding Judge, the Jury returned into Court, and said, “ that they found for the Plaintiff for the g25 paid Jones, and that the parties as to the residue, should produce their books and papers, and that their verdict for the residue would depend on a ¡settlement.”

His Honor informed the Jury that such a verdict could not be received, as it did not finally dispose of the cause j upon which the Jury retired, and returned a verdict for the Plaintiff for five hundred and twenty-five dollars.

A rule for a new trial being overruled, and judgment rendered according to the verdict, the Defendant appealed.

A copy of an affidavit made by one of the Jurors was made part of the case, but its contents are not necessary to this statement.

The cause was submitted by Badger, for the Appellant. No counsel appeared for the Plaintiff,

*12Hall, Judge.

Where the Jury have found a verdict against evidence, this Court has not power to set it aside. That can only be done by the Judge in the Court below. jt appearg that when the Jury first came in with a verdict, they had not finally made it up from the evidence which they had heard. The Court sent them back, and told them such a verdict could not be received; as it did not finally settle the question. There appears to be nothing objectionable in this. It is not proper to read the affidavit of the Juror. If it was, it would only prove that the Jury had been balancing upon the testimony of Jones, one of the witnesses.

Per Curiam. — Let the judgment be affirmed.