¶1Appellant insists, that this verdict was so clearly against the weight of evidence, that it should have been set aside, and a new trial ordered. The issue made in the case, to state it briefly, was, whether the machine failed to work well, because of plaintiff’s negligence. Upon this subject, the bill of exceptions informs us, that the defendant failed to introduce any proof. As, the burthen of proof in this respect was upon him, there is no ground for claiming that the verdict was against evidence. The testimony as to the agreement to return the machine, and the instructions based thereon, relate to an issue not made, or attempted to be made, by the pleadings. The testimony was, therefore, immaterial. To justify the granting of a new trial, on the ground that the verdict is against the weight of evidence, such want of evidence must relate to a material issue, legitimately made by the pleadings. It is the issue of fact made by the pleadings, which the jury are to determine, and not others or different ones.
¶2Judgment affirmed.