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 day of February and 2d day of September, 1865, respectively, and for no other purpose. Said book was not read or shown to the jury by defendant. At another stage of the trial plaintiff offered defendant said book as evidence to the jury on his part, the book being tendered the plaintiff by the defendant for that purpose, and then called James W. Evans, witness in the case, and offered to prove and introduced his testimony tending to show that defendant had made, since the last trial of this cause, a false entry of a settlement, to-wit: of September 2d, 1865. To which defendant excepted, because the testimony would tend to impeach the book which the plaintiff himself had introduced as testimony on his part.

The witness (Evans) testified that " this entry was not exhibited on the trial;" he had "no recollection of any such entry." "I did not see it (entry) on the other trial. I took the book into my hand." Entry from Waldron's book: "Settled this day with J. W. Evans all matters to date, except board from the 9th of June, 1865, and find due him $78.50. Sept. 2, 1865."

Ruling excepted to upon the part of defendant.

The jury returned a verdict for the plaintiff.

This action comes here by petition in error.

The defendant in error moves to dismiss the action hence, for the reason that in the court below, the plaintiff in error did not make a motion for a new trial.

Spink and Hand and C. H. Brackett, for the defendant in error.

William Tripp, for the plaintiff in error.

The court, after argument, overruled the motion to dismiss, and the case, on its merits, was elaborately argued by the counsel on bothPsides.

The opinion of the court was delivered by, C. J. The judgment of the court below was

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