¶1This was an action brought by the plaintiff against the defendant on three promissory notes for the aggregate sum of $706.00 besides interest, made by the defendant’s intestate, and on an account against him for $7.43. One of the notes was for $[8,08, dated June 8th, 1861, and another for $5oo.oo, dated April 27th, 1862, and the third note was for $80.50, dated October 9th, 1862, all of which were due one day after date. The account was dated in 1861. The defendant pleaded tender, payment, and the scaling ordinance of 1865. On the trial of the case the jury found a verdict in favor of the plaintiff for $51.46 principal, and $67.14 for interest. The plaintiff made a motion for a new trial on the grounds therein stated, which was overruled, and he excepted.
¶21. There was no error in admitting the evidence of Mrs. Wimpee as to the payment of the $600.00 note for her then husband, W. R. Thompson, on the ground that Rush, the payee thereof, was dead. Mrs. Wimpee was not one of the original parties to the contract or cause of action in issue or on trial, and she was not called to testify in her own favor, and besides it does not appear from the record that her testimony was objected to at the time it was offered.
¶32. Nor will we interfere with the discretion of the court in refusing to allow an extract from the answers of Mrs. Wimpee to a set of interrogatories to be read the next *147morning after the evidence had been closed the previous day, for the purpose of contradicting or impeaching her testimony which she had given in person the day before, it not appearing that she-was present, or that any foundation had been laid for its introduction.
¶43. The court gave in charge to the’ jury the whole of the ordinance of 1865, relating to the contracts sued on, and there was no error because it did not do more.
¶54. Under the provisions of that ordinance, the jury had a large discretion in settling the equities between the parties in the case, especially if they believed the $600.00 note had been paid, as they had the right to do under the evidence, and therefore we find no error in overruling the plaintiff’s motion for a new trial.
¶6Let the judgment of the court below be affirmed.