*436 By the Court.

delivering the opinion.

In this ease, the verdict could not, on the evidence, have been other than what it was. There was no evidence, that Miller, when he consented that the $1000 might be applied to the payment of other debts than his own, had knowledge or notice, that the partnership of Causey & Oslin had been dissolved, or that the $1000 was to be applied to the payment; of any other debts than those of Causey & Oslin. There is, therefore, no evidence that he consented to the misapplication, by Causey, of any funds, whether belonging to Causey & Oslin or to Causey, or to Oslin. For aught that appears in the evidence, the consent‘of Miller was to no more than that the fund might be applied to the payment of other debts due by Causey Oslin. Such a consent as that could not, if^acted on by Causey, injure Oslin. Such a consent cou'Id not, therefore, operate so as to discharge Oslirn from the debt to Miller. Nothing but a consent to a misapplication of the money cbuld. And the burden of.showing consent to a misapplication was upon Oslin.

[1.] This being so, and there not having been made any motion in the Court below for a new trial in the case, this Court ought not.to order a new trial in it, even if it should consider the Court below to have committed some errors; for in such a case, a new trial could not properly result in any other than the old verdict.

No opinion, however, is expressed as to whether the Court erred in any respect or not. (Acts of 1853-’4-’46.)

A new trial is refused simply because the verdict was beyond a doubt, right on the evidence. '