1. The facts of this case will be found in the official report. Under these facts, the court did not err in refusing to grant a new trial upon any of the grounds seout in the motion. The charge of the judge is a full ;and fair exposition of the law governing the case. Under the charge, the jury found that there was an excess warranty in the sale of the first horse, and that "the plaintiff did not take the second horse in exchange for theffirst, except on condition that the second horse :.-suited him. They also found by their verdict that the -first horse was worthless. The first horse was returned to the defendants by the plaintiff, and they kept him. "The second horse was also returned to them, and he -was kept by them. The defendants therefore had both horses and the plaintiff’s money. They were not entitled to keep the horse and the money too. The -plaintiff' was entitled at least to recover the money he (paid for the horse.
2. The only difficulty we have had in affirming this judgment has been the question upon the allowance of counsel fees to the plaintiff by the jury. The code, §2942 declares, “The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff' unnecessary trouble and expense, the jury may allow them.” ¥e have carefully read over this evidence as sent up in the brief *387thereof, and we think that the testimony shows that the defendants acted in bad faith towards the plaintiff. They kept both horses and refused to return the purchase money. Under these circumstances, we think the jury were justified, under this section of the code, in allowing the plaintiff his counsel fees in the ease.
Judgment affirmed.