
    SPEAR TO use of ALEXANDER BARNES vs. JOHNATHAN H. SCOTT.
    3. If no exception be taken to the opinion of the court below, its decision will not be reviewed.
    APPEAL from New Madrid Circuit Court.
    Cook, for appellant.
    The error complained of, is the refusal of the circuit court to set the verdict asid# and grant a new trial. The defence set up rests upon the assertion that a quantity of public land, adjoining the land which was sold and conveyed to Scott by Spear was the consideration of the note in suit. Prom the evidence, it is clear that the adjoining public land was in no way considered by the parties as any part of the consideration for which the note in suit was given. There is no evidence of failure of consideration or any other matter that could be legally set up as a defence.
    Crockett & Kasson, for appellees.
    The appellant in his motion for a new trial relies on the following grounds:
    1st. The verdict was contrary to law.
    2nd. The verdict was against evidence,
    3rd. The verdict was without evidence.
    I. There were no instructions asked and none given, and the plea was a failure of consideration — a mere question of fact, which the jury found for the defendant. The verdict ought not to he disturbed: Young vs. Kelly, 9 Mo. R., 51; Von Phul V3. City of St. Louis, lb., 50.
    II. When the testimony is conflicting, the supreme court will not set the verdict aside. Here if it was so, it preponderates (or the defendant. The question of evidence was for the jury: Rennick vs. Walton, 7 Mo. R., 292; Glasgow et al. vs. Moore, 9 Mo. R., 843.
   Ryland, J.,

delivered the opinion of the court.

This was an action by petition in debt, on a promissory note, in the circuit co'urt of New Madrid county — the defendant plead the statutory general issue.

The cause was submitted to a jury, upon the evidence offered by both parties; the jury found for defendant.

The plaintiff moved for a new trial; his motion was overruled; he excepted to the opinion of the court and brought the case hereby appeal.

From the record it appears that no objections were made, no exceptions were taken, to any evidence offered by either party on the trial below — no instructions were asked, nor were any given. The case upon the facts in evidence was submitted to the jury, and their verdict, being for the defendant, will, according to the uniform practice of this court, remain undisturbed: See cases cited in the brief of the appellee’s counsel.

Judgment affirmed.  