Hibbard v. Kirby. he was indebted to plaintiff in any sum whatever, and on the contrary alleged that the plaintiff owed him $300. On hearing the evidence, the justice gave judgment in favor of plaintiff for $275, and defendant appealed to the Circuit Court. In the Circuit Court C. D. & W. L. Bancroft filed a motion in which they claimed to be the owners of the property seized by the constable, and asked to be made defendants, which the court overruled. There was a trial by jury, verdict and judgment in favor of plaintiff for $275, motion for a new trial overruled, bill of exceptions, and appeal by defendant. I. It is a matter of no consequence whether the court erred in refusing to permit C. D. & W. L. Bancroft to be made defendants. There was a personal judgment against appellant only, and no lien fixed upon the property seized by the constable, and no condemnation of it to satisfy the judgment. OF THE II. Before the trial, the motion filed before the justice 1. JUSTICE to dismiss the cause for want of jurisdiction, was taken up, PEACE: argued and overruled by the court. The sum claimed in the account filed was less than $300, and within the jurisdiction of the justice. Sec. 40, Art. 7, Constitution. Jurisdic tion. Amount. Any defect in the summons, or service, was waived by 2. PRACfiling an answer to the merits. TICE: Defects in service,. It is not material whether the justice had jurisdiction to etc. enforce a laborer's lien on the property seized by the constable or not. There was no judgment for a lien in the Circuit Court. III. It was made ground of the motion for a new trial, 3. CONTINthat the court overruled a motion for a continuance filed Absent by appellant. UANCE: witness. 4. BILL OF EXCEP Hibbard v. Kirby. In the motion appellant stated that he could prove by W. L. Bancroft, an absent witness, that appellee told him that appellant had only contracted to give appellee seventy-five dollars per month, and not five dollars per day as alleged. Appellee admitted that if the absent witness were present at the trial, he would testify to the statement contained in the motion, whereupon the court overruled the motion. This was in accordance with the act of March 5th, 1879, (Acts of 1879, p. 26), amending Sec. 4644, Gantt's Dig. IV. It was made grounds of the motion for a new trial, TIONS: that the verdict was contrary to the evidence, and that the -dence. court erred in refusing certain instructions moved for The evi appellant. Counsel for appellee submit that the bill of exceptions does not purport to contain all of the evidence introduced on the trial, and that therefore this court should presume that there was evidence to support the verdict, and justify the instructions of the court. It is true that the bill of exceptions does not follow the proper practice by expressly stating that it contains all the evidence introduced, or facts proved on the trial, but it appears with reasonable certainty, from its expressions, that no other evidence was introduced than that set out by it. It first sets out the evidence introduced by appellee (plaintiff below) and then states: "Plaintiff here rested." Then the evidence introduced by appellant (defendant below) is set out, and then follows: "Defendant here rested. The court thereupon gave the following instructions for plaintiff," &c. This statement reasonably excludes the presumption that appellee introduced any evidence in rebuttal after appellant closed. Leggett v. Grimmett, 36 Ark., 496. Hibbard v. Kirby. V. The substance of the evidence introduced on the trial, as stated in the bill of exceptions, follows: Plaintiff Kirby (appellee here) testified that on or about the twenty-fifth of June, 1879, defendant Hibbard (appellant here) engaged him in Chicago, Illinois, to select, ship, erect and run a certain smelting works at Richmond, Montgomery county, Ark., defendant's place of residence. That defendant agreed to give him five dollars per day for his services in the matter. That he was at the time engaged in the carpenter's business, his trade, but had been engaged in the smelting works of the "Horn Silver Mining Company" for seven months, and was getting $1.50 per day for his services, and boarding himself. He told defendant he understood the business of erecting a smelter, and running it, for the extraction of silver ores. That he left Chicago about the sixteenth of July, 1879, and defendant paid him $100.00 as an advance payment on his wages. That he proceeded in the erection of the works, but did not complete them. Defendant paid him at different times $104.90 more, making $204.90. He remained in the employment of defendant until the eighth day of October, 1879, when he left, without giving defendant any previous notice. He simply went in, and told him he was going to Chicago. Defendant asked him, what for? He replied, to buy a smelter for one Blish. Defendant said, all right. He left, and had continued in the employment of said Blish ever since. Erected a smelter for him, and it was started, but it failed to smelt ore for want of enough ore. Never told W. L. Bancroft, at any time, that his engagement with defendant was for $75 per month. D. C. Baldwin testified that he had been mining for the previous 20 years. Never smelted any ores, but had seen them smelted. The works erected by plaintiff seemed to be Hibbard v. Kirby. erected all right. Thought that such services as plaintiff performed were worth from three to five dollars per day. "Plaintiff here rested." Defendant testified that being desirous of purchasing a stamp mill for the reducing of silver ore, he went to Chicago in June, 1879, and met plaintiff, who stated that he understood the erection and operation of a smelter for said ore. Agreed to give him $5 per day to purchase machinery for him, and he was so engaged for three days, for which he paid defendant $15.00. And agreed to give him. $75.00 per month, and board thereafter, to erect, and put in successful operation the works at Richmond, Montgomery county, Ark. Paid plaintiff $100.00 which was a settlement for purchasing the machinery, and one month's wages. Plaintiff came to Richmond, and partially erected the works. Before he had completed them, without notifying defendant, he came in one morning, and said: "I am going to Chicago to-morrow to buy a smelter for Mr. Blish." Defendant told him "all right," which he did. That was about all that was said. Defendant did not discharge him. Plaintiff never returned to his employ-was still working for Blish. Had no confidence in plaintiff's ability to perform his contract owing to the fact that he made assays of ores and pretended to tell how many dollars of silver they would go to the ton, without weighing the silver buttons. Did not discharge plaintiff; he discharged himself. Paid him money whenever he called for it. Defendant then read in evidence his statement in the motion for continuance that W. L. Bancroft would testify, if present, that plaintiff told him that defendant only agreed to give plaintiff $75.00 per month. By way of rebuttal, plaintiff testified, that he never had any conversation with W. L. Bancroft, to the effect Hibbard v. Kirby. that he was to receive $75.00 per month instead of $5.00 per day. John Morse, for defense, testified that he was a machinist, and placed the engine of the smelting works at Richmond in proper position, and put it in running order. That plaintiff only put it in the inside of the enclosure. "Defendant here rested. The court thereupon gave the following instructions," &c., &c. Before considering the instructions, it may be remarked that the evidence was conflicting, and it was the province of the jury to weigh it, and determine whether the preponderance was for appellee or appellant, Appellee's version of the contract was that he was to get $5 per day for his services. Appellant testified that he agreed to give him $5 per day while purchasing machinery, and thereafter $75 per month, and his board, for his services. He did not prove that he boarded him, or paid for his board while in his employment. They did not differ as to the time when, nor as to the circumstances under which the employment ceased. If the court properly instructed the jury, the verdict should not be disturbed on the ground that it was contrary to the evidence. tions. VI. Appellee moved three instructions, the first of Instrucwhich the court gave, and refused the other two. That given, and to which no objection appears to have been made by appellant, was: "That if the jury find from the evidence that defendant agreed to pay the plaintiff the sum of five dollars per day for his services, and they also find that the contract was by mutual agreement dissolved on the eighth day of October, 1879, they will find for plaintiff." VII. Appellant moved the following instructions: 1. "The court instructs the jury that when a party con |