R. G-. Haniel testified : The deed was given by defend ant to secure a note given by him to plaintiff, which note witness held in his hand. It was credited with $396, leaving a balance of over $1,100 principal. The deed embraces the land sued for, except one hundred and thirty-five acres sold to plaintiff and for which the $396 credited on the note was paid. The settlement referred to by- defendant had nothing to do with the individual claims of plaintiff", nor was the note or deed embraced therein. Witness was a member of the firm that made the settlement; was not present all the time the settlement was being made; it was made through plaintiff.Plaintiff’ testified : The settlement referred to by defendant was a settlement of the business of the two firms, but had nothing to do with plaintiff’s individual claims, and did not embrace the note to secure which the deed was given. The note is still unpaid, except the credit on it. Considered the title to the engine and machine as in the firm after the settlement; the firm have paid taxes on them ever since. On said settlement paid defendant $700, but it was only on settlement of the firm- business. The mule referred to by defendant was plaintiff's own mule, and defendant had no right to him. Defendant claimed it was only a temporary exchange when witness regarded it as a permanent trade. The deed, as well as the note to secure which it was given, was the private property of plaintiff’ and was kept in plaintiff’s private salo (safe?), and the firm had nothing to do with the deed or note, which was not embraced or considered or mentioned in the transaction mentioned by defendant.The note was introduced. It was of the same date as the deed, was for $1,516.50 principal, with interest at eight per cent, from maturity, and was payable to the plaintiff. Indorsed on it was a credit for $396, dated October 24, 1884.The jury found for the plaintiff the premises in dispute. The defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence; and further, because the court failed to charge the jury that if they found that the deed was given to secure the note, they should find by their verdict whether it was so given and whether the note was paid, and if. not paid how much was still due thereon; and the movant alleges that herein the verdict does not cover the issues made by the pleadings.J. II. Holland and Hobby & Oliver, by brief, for plaintiff’ in error.Hell & Wade, contra.
