Debt by Rush the payee, against McCoskry and another, the makers of a promissory note.

Pleas, 1. Nil debet. 2. That the note was given to the payee upon an agreement whereby he undertook, for that sum, to furnish Rush, one of the makers, a conveyance and support for and during a journey to California; that he did not furnish them, and that, therefore, the consideration of the note had failed.

Replication to this second plea, that the consideration of the note had not failed, &c.

Jury trial, verdict for the defendants, motion for a new trial overruled, and final judgment on the verdict.

The instructions of the Court are not upon the record. The evidence appears in the transcript. It all went to the jury without objection; and the only question, therefore, that can be here raised in regard to it is, whether the verdict is sustained by it; in other words, whether the Court below erred in refusing to grant a new trial on the weight of the evidence.

It is conflicting, and, hence, was for the jury alone to reconcile and weigh. The cause, therefore, must go off our docket under the formula that every term accompanies so many that are improperly placed upon it, in a like fate: “ In such a case we cannot disturb the finding of the jury. The judgment below is affirmed with costs, to be certified.”

The judgment is affirmed with costs.