Complaint is made that the court below refused to instruct the jury, as requested by the defendant’s fourth point, that “ The plaintiff is not entitled to rescind the trade and reclaim the horse, unless defendant perpetrated a fraud upon him.” The vice of this point is that it assumed the disputed 'facts in the case. The plaintiff’s contention was that there was no trade, and he gave evidence in support of it. This question *51of fact is ignored in the point. The only other assignment is that the court declined to give a binding instruction in favor of the defendant. This the court could not have done, under the evidence. The case was properly submitted to the jury.

Judgment affirmed.