| Mo. | Mar 15, 1851
delivered the opinion of the court.
By the verdict of a jury, and the judgment of the Scott county court, the plaintiff recovered of defendant (as administrator) the sum of forty dollars, on an account filed against the estate of his decedant for a hundred dollars, that being the balance claimed for an improvement on the public lands, which had been entered away from the plaintiff by the defendant’s intestate.
Upon an appeal to the circuit court, the jury in the first trial ren-.l dered a verdict for sixty dollars and a half, and upon a new tria being granted, the third jury (there having been a mistrial in consequence of a divided jury) rendered a verdict for the sum of ninety» five dollars. A judgment having been entered accordingly and a motion for a second new trial overruled, the defendant has appealed to this court.
The testimony was rather inexplicit and ambiguous, but as it was not sufficiently so to justify the circuit court or this court in instructing the jury to disregard it, its effect, under the instructions which were given, and all were given that were asked for, was very properly left to the jury.
That the testimony was differently estimated by three different juries can in no respect impair the preponderant confidence implied in confiding to such tribunals the issues of fact in dispute between litigants inasmuch as different judges might have similarly or even more widely disagreed in their respective findings.
In addition to that, as It is not, deducible from the record before us, that the jury either misconceived or disregarded the instruction of the court, (which was hypothetical, merely, and unobjected to) the circuit judge would have acted in obvious violation of established construction of the third section of the practice act, referred to by the counsel for the appellee, liad he compelled him to litigate his claim anew as prayed for in the motion for yet another trial.
Judgment affirmed.