Opinion by

Instructions Nos. i, 2, 3, 4 and 11 asked by the appellants and refused by the court are not made a part of the record, although the order of court recites that they were asked and refused, and that the appellants then excepted to the refusal. The rule is that instructions refused do not become a part of the record by a mere recital in an order of the court that they were asked and refused.

Being refused, they are the private papers of the party offering them, and never came to the custody of the clerk as a part of the record unless expressly made part of it by the order or by bill of exceptions; but instructions recited on the record as given thereby became a part of the record, and when identified by the certificate of the clerk may be considered by this court.

To instructions numbered 6 and 7 given by the court, the appellants excepted, and these we may consider as a part of the record, but they seem to us to have been correct. Instructions 8, 9 and 10 were given on motion of appellants.

The verdict does not seem to us to be so palpably against the evidence as to warrant a reversal on that ground. Two juries have-found against the appellants on the evidence, and if the propriety of their finding was even more doubtful than we think it is, we should not feel authorized to interfere.

Judgment affirmed.