Heydenfeldt, J., and Murray, C. J., concurred.

This is an action of ejectment, in which respondent, who is plaintiff, below recovered judgment for restitution of a lot in Sacramento.

The appellant relies upon two points: First—the Court erred in admitting as evidence to the jury, a certain power of attorney from J. A. Sutter to A. C. Peachy, and also a deed from said attorney to Frederick Billings. It does not appear that an exception to the admissibility of the deeds referred to, was taken on the trial of the cause. The point cannot, therefore, be considered on appeal.

Second—the Court erred in refusing to give the following instruction: “ If there is a reasonable uncertainty, as to whether the power of attorney introduced by plaintiff, includes this identical lot, defendant should have a verdict.” From the record, it appears that evidence was submitted, tending to establish a tenancy in the defendant. The plaintiff’s case, not depending alone on the evidence mentioned in the instruction, it was properly refused.

The judgment is affirmed, with costs.