MUNDINE VS GOLD, 5 Port. 215

HOPKINS, C. J. The action in this case^was' assumpsit, in which the defendant in error was the' plaintiff in the Circuit Court of Shelby county; One of the pleas of the plaintiff in error, upon which issue was taken, was set off.

In support of this plea, the plaintiff in error proved, that he sold, previous to the commencement of the action in this case, a horse to the defendant, for the sum of eight dollars, and a judgment for forty-five dollars, and several years interest thereon, which the defendant represented would appear in his favor on the docket, of one of two justices of the peace, who were mentí mod,- against one PiJgreen and L. B.

Clark.lie proved also there was no such judgment on the docket of either of the two justices, and that after the sale of the horse, a sum of money due to Pil-green was collected by one of his creditors from his debtor, as we understand the' bill: of exceptions in the case. The deiendant in error proved, that when he purchased the horse, he informed Mundine that the persons against whom, he represented he had d judgment, were insolvent. The value of the horse was proved not to have exceeded, at the time of the sale, fifteen or twenty dollars; but a subsequent sale of the horse was made for more than fifty dollars.

Upon this testimony, the Circuit Court instructed the jury, the plaintiff in error was not entitled to a set-off to the amount which was represented to be due on a judgment that had never been rendered; but to the value only of the horse, at the time of the sale, without reference to the contract of sale. The plaintiff in error excepted to the instructions of the Court.

Although there was proof, that Gold informed Mundine, when the contract for the sale and purchase of the horse was entered into, that he thought the persons against whom, he represented he ' had. a judgment, were insolvent; there was evidence also, which tended to prove that one of the persons had a debt due to him, which might have been secured for a partial, if not sufficient, for the full satisfaction of the judgment, if such a judgment had belonged to Gold.

It is the right of a jury and not of a Court, to ¡Iweigh evidence, which tends to prove any thing in I issue, and to determine what matters of fact are proved by the testimony. The jury in this case should have been instructed, that if they believed from the evidence, Mundine could have collected a judgment of the amount, for which Gold represented he had one, of the persons against whom he said it was, they ought to allow Mundine a set-oiF to the amount which would have been due on the judgment, if the representation had been true.

But if they believed nothing, or if any thing, less than the value of the horse could have been collected on such a judgment, they ought to allow Mundine a set-off to the value of the horse at the time of the sale. Two parts of the record seem to have been intended as bills of exceptions. The evidence set out in one, is a little different from that in the other. We have have noticed the one which is first set out in the record, because it contains an exception to the opinion of the Court. As the other contains no exception to the charge of the Court, we can take no notice of it for any purpose.

Let the judgment be reversed, and the cause remanded.