¶1The opinion of the court was delivered by
¶2One question reserved in this case relates to the testimony introduced by the defendants, showing that after the suit in *171favor of the defendants 'against the plaintiff, and pending before Justice Benson, was discontinued by his non-attendance at the place and on the day to which it had been continued, the defendants paid the -plaintiff’s taxable costs, incurred in that suit. The case was tried upon the general issue and notice of payment of those costs. The question was then distinctly presented, under the issue, and the evidence was admissible, not only for that reason, bat as mitigating or reducing the plaintiff’s damages.
¶3The evidence that the justice was expected at the place of trial to try the case, was also admissible, as tending to show that the defendants were not acting in bad faith. It had no relevancy, to be sure, to the question upon which the cause was submitted to the jury. That was whether the defendants used proper care and diligence in' giving the justice notice of the continuance of the suit. Upon the point, as to the correctness of the charge, no exception was taken, Oiid the judgment pf the county court is uffimapd, ‘ ’ '