trict attorneys shall not be diminished during the term for which they shall be elected or appointed.

The contention of the attorney of respondent, that the board did not diminish, but fixed, the salary, has no real existence, and is not even the well-defined ghost of a respectable technicality. If they fixed or allowed the salary at a less sum than the salary then existing, they diminished it.

Neither is there any distinction in this case between the word "allow," appearing in said amendment, and the word "fix," as used in the wording of the motion or resolution of the board constituting the action appealed from. When the board "allow" the salary they "fix" it-it is fixed; and when they "fix" it, it is allowed-they allow it.

The further contention of the attorney for respondent, that "when one term expires another term begins at the same instant," and that the proposition "that the board cannot then fix any salary that would be a diminution of the salary before fixed, leads to the absurd conclusion that it must at some prior session allow the salary in futuro," raises no question that this court will consider in this case. We are to pass upon what was done, and not to determine what might have been done. Neither are we to decide whether or not, under existing law, the salary of district attorneys, when once allowed, can be diminished. It is sufficient for the purposes of this case that the effort to diminish the salary in this instance was illegal; and the error consisted in holding it legal, and no valid judgment could be based or rendered upon such holding.

The board of county commissioners had no power or authority to diminish the salary of the office of district attorney after the term of office for which the plaintiff (appellant) was elected had begun; that is, during the term. Their action was illegal, and the district court should have so found and declared, and judgment should have been rendered accordingly.

The judgment of the district court is reversed.

All the justices concurring, except PALMER, J., dissenting, and THOMAS, J., not sitting.

FRANZ FALK BREWING CO., Appellant, v. MIELENZ BROS., Re

spondents.

1. Appeal-Assignment of Error.

An assignment, "the court erred in admitting evidence at the trial against the objection and exception of the appellant," is improper for not stating in what the error consisted, or pointing out the evidence, the admission of which it is claimed was error.

2. Same.

An assignment, "the court erred at the trial in excluding evidence offered by appellant, and to the exclusion of which appellant duly excepted," is improper as not pointing out what evidence was excluded, to the exclusion of which it is claimed there was error.

8. How to Assign Error.

It is not only necessary to allege error on the part of the court in doing the act complained of, but there must be some ground stated as the basis of the allegation, and it must be specifically and definitely set forth in the assignment, so as to show in what way an error was committed.

4. Assignment of Error Defined.

An assignment of error means the marking or pointing out of the error. 5. Review-Error not Relied on.

An assignment of error will not be considered that was not relied upon or mentioned by the appellant in his argument before the court. 6. Assignment of Error-Disapproval.

An assignment, “the court erred in overruling and denying appellant's motion to set aside the verdict and for a new trial," disapproved. It is not such an assignment as the court is bound to notice.

7. Review-Sufficiency of Evidence.

To determine whether or not a verdict is sustained by the evidence, this court, from the province of the jury, will not speculate or inquire how it would have viewed or acted upon the evidence. The only question to be answered is, is there any legal evidence upon which the conclusions embraced in it can be fairly reached? If there is, in a case where the evidence is conflicting, the verdict will not be disturbed; if there is not, it will be set aside.

(Submitted May 12, 1887; affirmed May 26; opinion filed February 23, 1888.)

Appeal from the district court of Davison county; Hon. BARTLETT TRIPP, Judge.

The action was for the price of certain beer the plaintiff had sold to A. W. and F. W. Mielenz, partners. The defense was that the beer was not what it was warranted to be. A counterclaim was also interposed on the same ground, as appears by the opinion. The plaintiff denied the matters set up in the counter-claim. There was a verdict in favor of the defendants. Plaintiff appealed. There was a conflict in the evidence, and from the rule adopted by the court in such cases, and the fact that the evidence (held sufficient to support the verdict) is voluminous, the reporter has not deemed it of sufficient practical utility to publish it.

E. Whittlesey, (A. J. Edgerton, of counsel,) for appellant.

Subdivision 6, § 286, C. C. Pro., grants a new trial where the evidence is insufficient to justify the verdict, and the verdict is contrary to law.

In the case at bar the evidence is insufficient to support the verdict, and is contrary to law.

If there is any evidence upon which to base the verdict, it is very slight, and the verdict is manifestly and palpably against the weight of evidence.

The evidence is conflicting. Coleman v. Meade, 13 Bush, 358; Wylie v. Marine Bank, 61 N. Y. 415; Schwartz v. Yearley, 31 Md. 270; McGavock v. Woodlief, 20 How. 221; Middleton v. Findler, 22 Cal. 76.

The granting of a new trial upon the ground that the verdict is contrary to the evidence, it is true, is within the discretion of the court. Notwithstanding, when it is made apparent to the court that a new trial should be granted, it will be ordered, though it has been refused by the court below. Byington v. Woodard, 9 Ia. 360; Huntingdon v. Howe, 15 Ia. 606; Martin v. Orndorff, 20 Ia. 217; McAunick v. Mississippi & M. R. R. Co., 20 Ia. 338.

While an appellate court will cautiously and even reluctantly interfere with a ruling of an inferior court, refusing to set aside

a verdict on the ground that it conflicts with the evidence, yet, if it clearly so appears, such ruling must be reversed. State v. Tomlinson, 11 Ia. 401; McAunick v. M. & M. R. R. Co., 20 Ia. 338; Brown v. Mullin, 3 Pac. Rep. 99; Fawcet v. Woods, 5 Ia. 400; Northern Pac. R. R. Co. v. Shimmel, 9 Pac. R. 889; Hoffman v. Bosch, 4 Pac. Rep. 703; Jourdan v. Reed, 1 Ia. 135; 27 N. W. Rep. 276; 28 N. W. Rep. 922, 634; Halpin v. Third Ave-nue R. Co., 8 Jones & S. 175; Allgro v. Duncan, 24 How. 210; 39 N. Y. 313; 29 N. Y. Rep. 755; St. Louis & S. F. Ry. v. Bashman, 1 S. W. Rep. 555.

Dillon & Preston, for respondents.

Appellant in its brief does not claim any error under the first two assignments, hence they cannot be considered by this court. The third assignment presents but a single alleged error. It is based solely on the ground that the evidence will not support the verdict.

It has been repeatedly held that, where there is a conflict of evidence, a failure to ask the court to direct a verdict is an admission that there is sufficient evidence to go to the jury, and the party so failing is precluded from moving to set aside the verdict as against the evidence. Baylies, New Trials & Appeals, 503.

Where a motion for a new trial upon the ground of insufficiency of evidence has been denied, the court, on appeal, will not attempt a critical examination of the evidence, with a view to seeing whether the judge has correctly disposed of the motion. Id. 504.

A motion for a new trial is addressed to the discretion of the trial court, and its decision is final, unless it is clearly and manifestly wrong. There must have been an abuse of discretion. Sang v. Beers, 30 N. W. Rep. 258; Faulkner v. Klamp, 20 N. W. Rep. 220; Conklin v. City of Dubuque, 6 N. W. Rep. 894: Gutierrez v. Brinkerhoff, 1 Pac. Rep. 482.

Aside from these rules, an examination shows that the verdict in this case is fully sustained by the evidence.

FRANCIS, J. This action comes up on appeal from the judgment of the district court in and for the county of Davidson, territory of Dakota, on exceptions to the verdict of the jury, and on the judgment of the court denying a motion to set aside the verdict and grant a new trial, and three errors assigned. The action was originally brought to recover $660 for goods, wares, and merchandise sold and delivered by the plaintiff to the defendants.

The defendants answered, admitting that they ordered and received the goods, wares, and merchandise mentioned in the complaint, namely, certain beer.

Defendants further allege that on or about March 5, 1884, they made a contract with the plaintiff, whereby it agreed to sell and deliver beer to the defendants, at Mitchell, Dak., when ordered by defendants, which plaintiff agreed should, when received at Mitchell, be good and salable, and as good as the Joseph Schlitz Brewing Company beer, or better, and for which the defendants promised to pay the plaintiff $6.40 per barrel; and that by said contract the defendants were to pay freight on the beer when they received it, and the plaintiff was to procure and purchase for the defendant A. W. Mielenz a thousand-mile ticket on the Chicago, Milwaukee & St. Paul Railroad, free of charge; that said beer, when received at Mitchell, was not good or salable, and was not as good as the Joseph Schlitz Brewing Company beer; was sour, spoiled, unsalable, and damaged, and not worth the freight paid thereon by the defendants. That the freight paid thereon by the defendants amounted to $180. That, as soon as defendants ascertained that said beer was not good and salable they notified the plaintiff of that fact, and that they held said beer subject to the plaintiff's orders.

The defendants further allege that for a long time prior to March 5, 1884, they had been doing a wholesale liquor business in the city of Mitchell, Dak., under the name and style of Mielenz Bros.; that as such firm they had a large number of customers who were receiving their supplies from defendants; and that, being desirous of purchasing said beer for the purpose of