
    Henry Montfort, et al. v. Charles M. Hanna.
    Assignment of Error.
    No assigned error will authorize a reversal which was not named and relied upon as a ground for a new trial.
    Instructions.
    It is not reversible error for the trial court to refuse to give an instruction offered, where the court by another instruction gives the substance of that contained in the refused instruction.
    APPEAL FROM SHELBY CIRCUIT COURT.
    February 16, 1884.
   Opinion by

Judge Lewis :

It has been repeatedly held that no assigned error will authorize a reversal that was not relied on as a ground for a new trial. The first error complained of in this case must therefore be disregarded.

Instruction No. 1, given by the court in lieu of the one asked by appellant, is as follows: “An assault is an attempt or offer with force or violence to do a corporal hurt to another whether from malice or wantonness, as by striking at him or even holding up the fist at him in a threatening manner, or with such other circumstances as denote at the time an intention coupled with a present ability of actual violence against his person.” This instruction is substantially correct, and as favorable to appellant as the law authorizes.

The first instruction asked by appellant and refused by the court is an attempted definition of an assault. Whether this instruction is correct or not need not be decided, because the court having given one in lieu of it which substantially embodied the law applicable to the case, appellant was not prejudiced by the refusal to give it.

We do not think the court erred in overruling appellant’s motion .for a new trial. The jury was fully and properly instructed and their verdict can not be considered as against the evidence.

G. N. Robinson, for appellants.

Bullock & Beckham, J. L. Caldwell, for appellee.

Judgment affirmed.  