i. eromisusury: .verdiet against evidence. The court instructed the jury as follows: “ If you find from the evidence that D. D. Gregory indorsed the note given to him by the defendants to the plaintiff, and the latter, after such indorsement, x * * brought suit upon said note in the Circuit Court, * * and that the defendant Elliott was notified of the pendency of said suit, and appeared in person and * * filed an answer setting up the plea of usury; then if you further find that after such answer was-filed, and said plea of usury was set up, that the plaintiff, in this action and in that action, and the defendant entered into a written agreement by which said suit was dismissed and settled, and * * Elliott was to pay the costs, and that after such written agreement and settlement the note in suit and now before you for consideration was renewed by the said * * Elliott .to the plaintiff in this action for a debt owing from D. D. Gregory to the plaintiff in this case, then in such case the plaintiff is entitled to recover, and you will so find.”

The plaintiff did not except to this instruction, but the defendants did. The latter, however, have not appealed-.- Under these circumstances we have no occasion to pass, upon the correctness of the instruction. It must be regarded as the law of the case.

It will be observed it was made a material question whether the note sued on had been given for a debt due the plaintiff by Gregory. The jury found specially the note' was not given for a debt due the plaintiff by Gregory.

This finding is in direct conflict with the evidence. The only witnesses introduced on the trial were the defendant Elliott, Emmons the clerk of the court, Sullivan, and Davis, cashier of the plaintiff. The two latter only gave evidence tending to show whether Gregory was indebted to the plain*421tiff, and whether the note had been transferred in liquidation or payment of such indebtedness. The only conclusion that can possibly be drawn from such evidence is that the note was transferred' to the jilaintiff for a debt owing it from Gregory. There is not a particle of evidence to sustain the special finding.

■■ •Under the evidence the jury must and could only have found the other things mentioned in the instruction to be true. It, therefore, follows the verdict is clearly against the evidence. It should have been set aside and a new trial granted.

Reversed.

dissenting. I think that the verdict is hot contrary to 'the evidence, properly considered. Suppose the fact to be as claimed, that the plaintiff had .taken the note” in’ suit in satisfaction and discharge of the claim against Gregory, it is not the less true that so far as the defendant is concerned the note in suit was given in renewal of a former note which was usurious. The sole consideration which moved to the defendant was the cancellation of the former note, and that is the material consideration. He gave the note for his own former note, and I think that the jury propérly found that, looking at the matter from the defendant’s standpoint, which was the proper way to look at it, the defendant did not give the note for the debt due from Gregory.