
    Jewett & Root v. Smart & Gillett.
    1. Instructions. It is the duty of the jury to find a verdict according to the law .as given in the instructions of the court. Where instructions are erroneous, the remedy of the party prejudiced thereby is by exception and appeal.
    
      Appeal from Scott District CouH.
    
    Monday, April 15.
    
      D. L. Shoery, for the appellants.
    
      J. J. Idndley, for the appellees.
   Baldwin, J.

The defendants appeal from an order of the court granting to plaintiffs a new trial. The suit is upon an account for goods sold and delivered by plaintiffs to defendants. Defandant, Smart, in his answer alleges that the account sued on was settled; that the plaintiffs upon such settlement accepted the note of Gillett & Co. in full satisfaction of the account sued on. To this, plaintiffs reply that the note of Gillett & Co. was not taken in satisfaction of the said debt and with the understanding that defendant, Smart, was released from all liability to plaintiffs; that when said note was taken they supposed that Gillett & Co. was the firm of Smart & Gillett under a different name. Plaintiffs bring the note into court and offer to deliver the same up to defendant, and claim on the account alone.

The court granted to plaintiffs a new trial, upon the ground that the verdict was contrary to the evidence and the instructions of the court. No exceptions were taken at the time to the instructions given, and whether right or wrong it was the duty of the jury to regard them as the law and find a verdict accordingly. The defendant had his remedy if the instructions were wrong; but having failed to except to the giving thereof to the jury at the time, he can not now complain of this error if any existed. We therefore do not propose to determine whether the acceptance of the note by the plaintiffs was a full discharge to Smart of his liability to plaintiffs. The evidence fails to satisfy us that the plaintiffs knew when they took the note of Grillett & Co. for the account due by Smart & Grillett, that they were releasing Smart from all liability thereon.

From an examination of the evidence and the instructions of the court we are unable to say that the court abused its discretion in granting to plaintiffs a new trial.

Judgment afiirmed.  