¶1This cause was tried before me while Judge of the Twelfth Judicial District; and not by the District Judge who denied the new trial. When the motion for new trial came up for argument, the counsel for the plaintiff stated that he expected to obtain a new trial, on the ground that the verdict was against the evidence, at the same time admitting that the evidence upon which the verdict of the jury was rendered was conflicting, but claiming that the weight of evidence was in his favor. Thereupon the Judge intimated to counsel that inasmuch as he did not preside at the trial, and did not see the' witnesses, or have any knowledge as to their appearance on the stand, he should not feel at liberty to disturb the verdict of the jury unless some error of law had been committed. *502Upon such intimation, “ the counsel for the plaintiff deemed it best to submit the cause without argument, and the motion for a new trial was accordingly denied.” Counsel seem to have acquiesced in this action of the Court, and do not appear to have insisted that the Judge should examine the testimony, or to have excepted to the course pursued. They cannot now, for the first time, insist that the action of the Judge in intimating that he would not weigh the conflicting evidence was error.
¶2But the peculiar circumstances of the case are urged as reasons why this Court should not confine itself to the narrow limits recognized by its well established rule as to balancing conflicting testimony, especially since one of .its Judges presided at the trial in the District Court, and, therefore, is possessed of those aids which were wanting to the Judge who denied a new trial.
¶3In view of these suggestions I deem it proper, without attempting a discussion of the evidence, to briefly state the conclusion to. which my mind is led. There had been one trial and counsel entered upon the final contest thoroughly prepared on every point. The interest manifested by counsel was worthy the magnitude of the stake, and the cause was tried on both sides with consummate ability. If the full strength of the case was not then presented there is little hope that it ever will be brought out. I listened to the entire evidence with unusual interest, and followed closely the elaborate and eloquent arguments of counsel before the jury, where the testimony was subjected to a masterly and thoroughly exhaustive analysis, and its weight, credibility and bearing were fully discussed. I have again, long since the excitement of the trial has passed away, read with care the entire evidence in the transcript, and the one hundred and sixty printed pages of briefs of counsel, in which the argument is again absolutely exhausted. When the verdict was rendered I was strongly impressed with the idea that it was justified by the evidence. And now, on a more careful review, after comparing and balancing the conflicting testimony, and *503applying to it, so far as I am able, all the known logical and legal tests, with a view of determining its credibility, and giving to each portion its due weight, I am still not only satisfied that the testimony is such that I should not, upon the most liberal view which could be taken, feel at liberty, if sitting as District Judge, to disturb the verdict, but also, if submitted to me upon the same evidence as an original question, I should feel compelled to find that the grant was never delivered to Kittléman—that the document made out never became a grant. The verdict therefore, in my opinion, is fully sustained by the evidence.
¶4Upon the questions of law raised by appellants, I also concur in the opinion delivered by Mr. Justice Sanderson.