| Mo. | Jan 15, 1846
delivered the opinion of the court.
The administrator of Swan sued Hyde & Johnson before a justice of the peace in Washington county, when Hyde filed an off-set. The cause was submitted to a jury, who not being able to agree, were discharged, whereupon the parties agreed to submit the case to the justice, who found for the plaintiffs, and entered judgment. The defendant, Hyde, then appealed to the circuit court of Washington county, when, the cause coming on for trial, it was submitted to the judge of the court, who found for the defendant, and entered judgment in accordance with his finding; thereupon the plaintiffs filed their motion for a new trial, assigning the usual reasons, which being overruled, they appealed to this court.
The circuit court was not called upon to decide any principle of law, but tried the cause exclusively on the evidence, which was sufficiently indefinite to embarrass a jury, and prevent its decision by them on the first trial. We are not prepared to say, whether the finding of the circuit court be correct or otherwise, inasmuch as there is a conflict of testimony, and we have not the advantage of knowing the witnesses, or seeing the manner of their testifying.
But there is a total absence of proof, implicating in any wise, Mary
The other Judges concurring, the judgment of the circuit court will be reversed, and the cause remanded.