WILLIAM HODGES, Appellant, v. CHARLES A. CUSHING, Respondent

WILLIAM HODGES, Appellant, v. CHARLES A. CUSHING, Respondent. No. 1694; September 28, 1868. Appeal — Verdict not to foe Disturbed. — Where the ease on trial is one in which the jury might have found either for the plaintiff or for the defendant, without becoming obnoxious to the charge of passion, prejudice, misconception or caprice, the verdict is not to be disturbed on appeal. APPEAL from Fifteenth Judicial District, San Francisco County. Porter & Holladay for appellant; Barstow & Tompkins for respondent. [MAJORITY — SANDERSON, J.] SANDERSON, J. This is an action of ejectment. . The trial was by a jury. The verdict was for the defendant. The plaintiff moved for a new trial upon two grounds: 1st. Insufficiency of the evidence. 2d. Errors in law committed by the court, while instructing the jury. The motion was denied, and we are asked to reverse the order, and grant a new trial. We do not consider either ground sufficiently sustained by the record to make its discussion profitable. On the first ground the case is one in which the jury might have found either way, without becoming obnoxious to the charge of passion, prejudice, misconception or caprice, and is, therefore, eminently a case in which this court will not disturb the verdict: Rice v. Cunningham, 29 Cal. 492. On the second ground we find no error in the instructions of the court upon the question of estoppel. • Order denying new trial affirmed, and ordered that the remittitur issue forthwith. We concur: Crockett, J.; Sprague, J.; Sawyer, C. J.; 'Rhodes, J.