
    S. Baker et al. v. John Marcum.
    New Trial — Verdict Contrary to Evidence.
    This court cannot interpose and award a new trial after the same was refused by the court below on the grounds that the verdict was contrary to the evidence.
    APPEAL EROM JACKSON CIRCUIT COURT.
    September 22, 1866.
   Opinion or the Court by

Judge Peters :

We are not prepared to admit that instruction No. 1 contained a correct exposition of the law on the subject, but if it did the substance of it was given in instruction No. 2. Consequently, appellants were not prejudiced by the refusal of the court below to give the former one.

Moreover, by instruction No. 3, which was also given, taken in connection with No. 2, appellants had the benefit of presenting their case to the jury in two aspects, the one for a breach of warranty'and the other for a deceit, which was more favorable to them than they had a right to ask.

The first instruction, given on the motion of appellee, was only the counterpart of the first one given for appellants, and the second one given for him was unobjectionable, as it only prescribed correctly the criterion of damages in case the jury found for appellants.

Prom the character of the evidence this court cannot interpose and award a new trial, after the same was refused by the court below, on the ground that the verdict was contrary to the evidence.

Wherefore, the judgment is affirmed.  