
    The Bank of the Commonwealth vs. Hiles.
    Pet. & Sum.
    [Mr. Crittenden and Mr. Robinson for appellant: Mr. [J. H. Daviess for appellee.]
    From the Circuit Court eor Scott County.
    
      November 4.
    Verdict for pl’tf —upon slight evidence, and new trial granted; ver diet, upon the second trial, for def’t—which, as the plaintiff took no exception, is presumed to be according to the right of the case: Held, that there should be no reversal for error in granting the new trial.
   Chief Justice Robertson

delivered the Opinion of the Court.

Although the evidence on the first trial, on the plea of non est factum, may have authorized the verdict, it was certainly but slight and questionable; and, therefore, as upon the second trial, a jury found a verdict for the defendant, and, by not excepting, the Bank has virtually admitted that, that verdict was right, we are not disposed to set it aside merely on the ground of alleged error in the Circuit Court, in setting aside the first verdict; for, as the new trial only afforded an opportunity for a full investigation on the merits—this court should not reverse the last judgment (apparently just,) only on the ground that a technical advantage was taken from the Bank by setting aside the verdict in its favor and granting another trial. No palpable error to the prejudice of the Bank seems to have been committed, and justice, as we must now infer, has been finally done.

Wherefore, the judgment is affirmed.  