
    James M. Forsyth, Sr., v. D. M. Jones, Adm’r.
    Admission of Evidence — Grounds for .New Trial — Practice.
    Even conceding that it was error to admit certain evidence at the trial, where such error is not designated as a ground for a new trial, the court of appeals cannot review the action of the trial court relative thereto.
    APPEAL FROM BOYLE CIRCUIT COURT.
    June 19, 1877.
   Opinion by

Judge Pryor:

The admission of incompetent testimony is not made one of the two grounds for a new trial, and therefore this court cannot review the action of the court below upon this branch of the case, conceding that an error in this regard has been committed to the prejudice of the appellant. The instruction based upon the idea that the appellant recognized his liability upon the note is in accordance with the opinion heretofore delivered in this case and must be adhered to. There is much conflict in the testimony upon the issue raised upon the plea of non est factum, and while the weight of the proof may be with appellant it constitutes no ground for reversal. We cannot say that the verdict is palpably against the weight of the testimony, but, on the contrary, a finding either way with proper instructions would have resulted in an affirmance by this court. We perceive no valid objection to the instruction given the jury after they retired. There was no objection made as to the manner of giving it, and if there had been there was nothing in the instruction prejudicial to the appellant. The jury was evidently more confused by reason of the facts than the law of' the case, and the hesitation to’ find a verdict must have originated from the conflict in the proof. .The instructions were easily understood and none of them calculated to' mislead. This case has been pending for many years. The issue made is one of fact only, and a jury having made a verdict under proper instructions this court will not disturb the finding.

Judgment affirmed.  