¶1(dissenting). It seems that neither counsel, the learned trial judge, nor this couxt are any of them quite certain whether this case was fried at a regular or special term of the court below. With this uncertainty the briefs and record lead me to sympathize. However, from, the entire record, and the affidavits and orders, it is my own best guess that the case was *213twice tried 'below at two separate and special terms. I am therefore unable to join in the assumption that it was tried at a general or regular term.
¶2Further, I am of the opinion that it was error to refuse the instruction requested by appellant. The request was timely, and I understand the foregoing opinion to- -concede that it correctly propounds the law. It is my opinion that the law on this point was not co-vered by other instructions 'given. The evidence was conflicting, the first jury disagreed, and no onezcan say what the verdict of the second' jury might have been if the requested instruction had been given. I do- not believe that it can be said, under all the facts and circumstances disclosed by this record, that appellant was not prejudiced by the refusal of her request.
¶3I therefore dissent.