#### Stephen R. Rowan v. Susannah Dosh, exec. of Joseph Dosh.

Error to Gallatin.

I. New Trial — recordmust show evidence. Where the error relied upon to reverse a judgment is that the court below ought to have granted a new trial, for the reason that the verdict was contrary to evidence, the bill of exceptions should state that the whole evidence is disclosed therein, otherwise it cannot be the basis of an assignment of error, (a)

This cause was heard in the court below at the May term, 1843, before the H011. Walter B. Scates and a jury. Verdict was rendered for the plaintiff for 1176.07. The defendant moved for a new trial. The plaintiff remitted 141.39, and the court denied the motion and rendered judgment for the residue. The defendant brought the cause to this court by writ of error.

M. Y. Johnson (with whom was H. Eddy), for the plaintiff in error.

J. A. McDougall, for the defendant in error:

The court will not set aside a verdict where there is conflicting testimony, although'it appears that the strength of evidence was against the verdict. Swan v. Hall, 2 Wils. 45; Douglass v. Toussey, 2 Wend. 356.

The record does not purport to set out all the testimony, and the court cannot therefore determine as to the correctness of the finding. Rogers v. Hall, 3 Seam. 45.

(a)

Cases Citing Text. Rule stated in head note enforced, Clark v. Willis, 16 Ill. 61; Miller v. Metzger, 16 Ill. 390, 393.

Lockwood, J ustice,

delivered the opinion of the court: This was an action of assumpsit commenced by Susannah Dosh, as executrix of Joseph Dosh, deceased, for work an.d labor performed by the testator, as carpenter and joiner, for the de~ *477fendant Rowan. The defendant pleaded non assumpsit and other pleas. The cause was tried by a jury, who found a verdict for the plaintiff below. A motion was made for a new trial, on the ground that the jury decided contrary to evidence, which was overruled by the circuit court. To this decision Rowan ex-cepted. The bill of exceptions taken,in the case is very inartifi-cially drawn, and it is extremely difficult to ascertain the precise character of the controversy between the parties. A long account, amounting to $956, was produced on the trial, and three witnesses were sworn by the plaintiff to prove the work done, its measurement, and its value. The statement of their testimony is so confused that it is impossible to ascertain the data on which two of them came to the conclusion that the work done was worth $804.07. Part of the testimony of the last witness introduced by the defendant below is as follows : “Mr. Cassel was examined to, and fixed the value in like manner, upon the [* 461] items not priced by Mr. Nicholson and Polunts.” The statement of the testimony of Cassel is altogether indefinite and uncertain. The bill should have contained a statement of the value fixed by him, in the portion of the work not valued by the other witnesses.

It is impossible for this court, in consequence of the great imperfection of the bill of exceptions, to determine whether the circuit court should have granted a new trial. This court has repeatedly held, that where the error relied on to reverse the judgment below is that the court below ought to have granted a new trial for the reason that the verdict was contrary to evidence, the bill must state that the whole of the evidence is included in the bill. The bill nowhere states that fact; on the contrary, it is evident that it does not contain all the evidence. This is fatal. It being the duty of the party taking the exceptions, to have included in the bill of exceptions all the testimony given in the case, and he having failed to do so, the bill of exceptions cannot be regarded as the basis of an assignment of errors.

The judgment is consequently affirmed with costs.

Judgment affirmed.