#### M. M. Thompson et al. v. J. F. Duff.

Filed at Mt. Vernon January 25, 1887.

1. Appeal—review of questions of fact. The finding of the Appellate Court upon the issues of fact, in an action of replevin, is conclusive upon this court, and not open to discussion or review.

2. Instruction—when sufficiently based on evidence. An instruction may be given hypothetically as to a state of facts, although the evidence in support thereof is very slight, or even unsatisfactory.

3. Same—repeating. The trial court is warranted in refusing an instruction, when all that is pertinent and proper in it is embodied in others which are given.

Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Jackson county; the Hon. Oliver A. Haricer, Judge, presiding.

Messrs. Allen, Moore & Schwartz, for the appellants.

Mr. M. W. Burr, for the appellee.

Mr. Chief Justice Scott

delivered the opinion of the Court:

This suit was brought by M. M. Thompson and David Lipe, against J. F. Duff, in the circuit court of Jackson county. The action was in replevin, and was brought to recover the possession of a portable saw-mill and fixtures pertaining to it. On the trial of the cause, before a jury, the issues were found for defendant, and the judgment rendered upon that verdict was afterwards affirmed in the Appellate Court for the Fourth District.

The question of ownership was the principal one tried in the circuit court. That is simply a question of fact, and concerning which the evidence, as found in this record, is quite *227conflicting. Upon the issues made, the findings of the trial and Appellate Courts were against plaintiffs, and, of course, the finding of the latter court is conclusive in this court, and the question made as to the ownership of the property is not open to further discussion.

The transcript of the record has been examined, and no serious error has been discovered, either in the admission or rejection of evidence, or in the giving or refusing of instructions.

It is objected there is no evidence upon which to base the 11th instruction, given on behalf of defendant. Although the evidence touching the facts stated in the hypothetical case mentioned in the instruction, is very slight, and even unsatisfactory, still it is thought there is enough to warrant the court in giving the instruction, as was done.

Objection is also made to the refusal of the court to give plaintiff’s instructions numbered 21 and 24. Without considering whether these instructions contained correct propositions of law, it is a sufficient warrant for the action of the court in refusing them, that it had already given more instructions for plaintiffs than the nature of the case required. Everything embodied in these instructions that had any application to the case, had been contained in other instructions given for plaintiffs, and the court was under no duty to give the same thing a second time, although expressed in different language.

The judgment of the Appellate Court must he affirmed.

Judgment affirmed.