The main questions arising upon the pleadings in this cause are identical with those which were considered and decided by this court, in the case of Cornell v. Nebeker, ante, p. 425, at the present term. That far forth, of course, the case cited is decisive of the case now before us.
But, in this case, the appellant has assigned as error, in this court, the decision of the court below, in overruling his- motion for a new trial, an alleged error, which was not assigned, as such, by the appellant in the case cited. In his motion for a new trial of this cause, the appellant assigned many causes therefor, consisting chiefly of alleged errors of law, occurring at the trial, and excepted to. "We have considered carefully the several questions presented by the alleged error of the court below, in overruling the motion for a new trial, although these questions have not been discussed in the argument of this cause, in this court, by the counsel of either side. Without stating these questions in detail, or giving our views thereon severally, we may say generally, that it appears to us, “ that the merits of the cause have been fairly tried and determined in the court below.” 2 R. S. 1876, p. 246, sec. 580.
In our opinion, the court below did not err in overruling the appellant’s motion for a new trial. . •
The judgment is affirmed, at the costs of the appellant.