delivered the opinion of the court. This is an action of trespass, bought by the appellee to recover drawages, for his having been disturbed, by the defendants and appellants, in his possession of a saw mill, and the land on which it is situated, as described in his petition.

They attempt to justify their entry on the premises, by a title in Curtis.

It is clear that a title to property will not justify the proprietor in a forcible entry, and ouster of a legal possessor. But, in the present case, it does not appear that any has been clearly made out by the defendants and appellants.

The case was submitted to a jury, who found one thousand dollars damage for the plaintiff and appellee, which is complained of as excessive: and it is insisted, for the appellants, that, on that account, the judgment ought to be reversed and a new trial granted, or a reduction made in this court of the damages to a just amount.

Whether this court would, in any case, interfere with the verdict of a jury, on account of enormity in damages, is not necessary to decide, as the present case does not appear to us so flagrant, as to require our interposition.

After the verdict and judgment, the defendants moved the district court for a new trial. This motion was grounded on the affidavit of one of them, stating, among other reasons, for obtaining a second trial, the discovery of evidence, which he could not, by ordinary and reasonable diligence, have discovered previous to the trial of the cause. This motion was overruled by the court, and no bill of exceptions was taken: which is contended to be *722unnecessary, as this court is bound to notice it, on the appeal from the final judgment, without having their attention thereto directed by a bill of exceptions.

We are of opinion, that this is correct. But, in the present case, from a strict examination of the affidavit, it is believed that the evidence to which it refers might have been discovered by ordinary and reasonable diligence, and that consequently that there is no error in the refusal of the new trial.

It is therefore, ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.