So far as the motion for a new trial was based upon the idea that the verdict was not in accordance with the instructions, we cannot say whether it was correctly supported, for none of the instructions are given.

The main ground for the motion, in the mind of the defendant, apparently is, that it was not supported by the evidence. But judging from the evidence embraced in the bill of exceptions (which was probably all that was introduced) we think the verdict fully sustained. It is clearly shown that the defendant sold the mules for five hundred dollars, and took notes, and that he did not sell them for the land, but that he bought this as a distinct transaction and gave but two hundred dollars for it, and that the consideration offour hundred dollars expressed is false. . It would be immaterial if the evidence did fail to show an express false representation to the plaintiffs on the settlement. If Hartman tacitly led, or permitted, the plaintiff to think that he got the land, and *65that only (with $25,) for the mules, and to settle with him upon that supposition, ho practiced a deceit. He is answerable for the amount he actually received, deducting his proper charges and compensation.

But, as clear as the facts may appear to us, we cannot reverse the order granting a newt ial, for the reason that some of the instructions are not given, whilst the motion is based partly on these, and the court may have granted it for some supposed error in them. Again, wo have no means of judging of the force of the first cause assigned in the motion for a new trial, relating to evidence offered of the declarations of Phelps.

The order is affirmed.