
    B. G. Broylton v. H. B. Spooner.
    Appeals — Motion for New Trial.
    Tlie Court of Appeals has no power to reverse a judgment on account of the giving of an instruction excepted to, where the error in giving such instruction was not assigned as a ground for a new trial.
    APPEAL FROM CALLOWAY CIRCUIT COURT.
    February 6, 1877.
   Opinion by

Judge Pryor:

The appellant has been granted two new trials in this case, and this is the third verdict rendered against him upon the facts.

L. Anderson, Marshall, Bloomfield, for appellant.

J. M. Bigger, for appellee.

The instructions presented to the jury the law of the case, and although instruction marked D is liable to the objection heretofore pointed out by this court in a former opinion, we cannot adjudge that it misled the jury or prejudiced the rights of appellant. Besides, the giving of instruction D is not made one of the grounds for a new trial.

The appellant asks for a new trial for error in giving instructions for the plaintiff, and for error in refusing instructions asked by defendant. Both plaintiff and defendant excepted to the giving of instruction D, and the court on its own motion gave it as the law of the case. So if there was manifest error in the instruction this court would have no power to' reverse, as the giving of this instruction, was omitted from the grounds for a new trial.

Judgment affirmed.  