This is an appeal from an order granting a new trial; and it is admitted that if all the evidence in the case was properly before the jury, this order cannot be disturbed. We think that no question can be raised upon this subject; and that the Court, in passing upon the motion for a new trial, could not properly have disregarded any portion of the evidence upon which the jury acted, in making up their verdict. The jury were bound to consider all the evidence before them; and the question for the Court was, whether, upon this evidence, they had arrived at a correct conclusion. In other words, the Court was called upon to determine whether the jury had properly discharged their duty, and it is obvious that, for the purpose of determining this question, it was necessary that full effect should be given to the evidence. When the competency of evidence has been declared by the Court, the jury are compelled to receive it, and make it the basis of their verdict, and we are unable to see upon what principle any part of it can be disregarded upon a subsequent inquiry as to the correctness of the verdict. As a matter of course, a verdict obtained upon incompetent evidence may be set aside; but this cannot be done where the evidence was admitted without objection; nor can it be done even where the evidence was objected to, upon the ground that effect was given to it by the jury. That which vitiates the verdict, in such a case, is the error of the Court admitting the evidence; and if the party, seeking to set aside the verdict, is not in a position to take advantage of this error, he cannot be heard to object that the evidence was improperly admitted. Where the only objection is, that the verdict was not authorized by the evidence, the question of competency is not a matter for the consideration of the Court; and whatever was before the jury must be regarded as proper and legitimate evidence.

*398There is no foundation for the appeal; and the order is, therefore, affirmed.

I concur in the judgment. If the District Court had held the witnesses, Kelty and Reynolds, incompetent, by reason of interest, the defendant might have offered other evidence to the same effect, or them competency might, perhaps, have been immediately restored by the execution of proper releases. The rule for which the appellant contends, would work great injustice in its application. A party failing to produce evidence in his possession, because of the ruling of the Court upon the admissibility of that already given, would often find that he had lost the case from a subsequent change of the views of the Court, without any fault of his own.