#### A. C. Phelps, Appellant, v. J. Walkey *et al.,*Appellees.

1. Practice in Supreme Court: conflict of evidence. Where the evidence in a cause is conflicting the supreme court will not disturb the verdict of a jury, unless there is such an absence of evidence in support of it as to authorize the conclusion that the verdict is the result of passion or prejudice.

2. -: error without prejudice. A case will not be reversed in the supreme court because of an erroneous instruction to the jury, where it appears that the error was without prejudice to the appellant.

3. Depositions: commission sent to witness. The fact that a commission for talcing a deposition was sent to the witness whose testimony was to be taken, and by him delivered to the proper officer, is not sufficient ground for suppressing a deposition where no prejudice is shown. ,

*Appeal from Gass District Court.*— Hon. A. B. Thornell, Judge.

Thursday, December 17, 1891.

*121Actiok -upon a promissory note. There was a ■judgment on a verdict for the defendants. The plaintiff ■appeals.

*Affirmed.*

*T. B. Swan*and *Willard*& *Willard,*for appellant.

*John W. Scott,*for appellees.

Beck, C. J.

I. The defendant Spry alleges that he is a surety on the note, and, as a defense, avers in his answer that the plaintiff extended the time upon the note in consideration of money paid him by the principal in the note, who also paid to the plaintiff usurious interest thereon. The plaintiff in reply denies the allegation of the answer, and sets up that the surety, after the alleged extension, received from the principal two promissory notes to indemnify him against liability on the notes in suit, and thereafter admitted his liability -and requested the plaintiff not to commence suit until the notes given as indemnity should fall due. With this request the plaintiff complied, and the defendant promised to pay the notes in suit.

II. It is first insisted that the contract for the •extension of time on the notes is not found on a sufficient 1. Practice in Supreme Court: conflict of evidence. preponderance of evidence, and, therefore, the verdict is contrary to the evidence. If we were to assume that on this point . . . there is not, m our judgment, a preponderance of evidence, this would not authorize us to set ■aside the verdict. The jury are charged with the duty ■of weighing the evidence and determining on which ■side is the preponderance. We cannot interfere unless there be such absence of evidence as to authorize the conclusion that the verdict is the result of passion or prejudice. There was no such condition of proof.

III. The court directed the jury that the fact that the defendant Spry received the notes from the *122
      2. -: error without prejudice. principal through, the plaintiff, as indemnity, is immaterial, except as it may throw light upon the question of the extension of time. We think the instruction ought not to have been given, as there was absolutely no evidence tending to show that the-notes were of one cent in value, and that they afforded any indemnity whatever to the defendant. There was evidence to the contrary. It is obvious that the notes would not be indemnity unless they were of some value, and, therefore, that the mere passing over to the defendant of notes not shown to-possess some value would not be indemnity. Therefore, if taking indemnity from his principal would make the-defendant liable after an extension of time given by the-plaintiff the evidence fails to show that there was in fact any indemnity received by the defendant. If the-instruction had not been given the verdict could not. have been different. ' It is, therefore, error without, prejudice.

IY. A commission to take the deposition of a witness was sent to such witness, and he delivered it to 3. Depositions: commission sent to witness. Pr0Per officer, who took the deposition, and made proper return thereof. A motion to suppress the deposition, on the ground that the commission was sent to'-the witness, was rightly overruled. No prejudice is alleged or shown to have arisen by sending the commission to the witness, and we are unable to discover any ground for excluding the-deposition.

This discussion disposes of all questions in the-case. The judgment of the district court is affirmed.