
    Edward Behan vs. John J. Williams.
    Essex.
    November 7, 1877.
    Morton & Soule, JJ., absent.
    
      A. bill of exceptions to the refusal of a judge to grant a new trial, asked for on the ground of newly discovered evidence, set forth the evidence at the trial and the new evidence, and stated that the judge decided that, upon this evidence, if proved, the verdict ought not to be set aside, and overruled the motion. Held, that no ground of exception appeared, and that the exceptions must be overruled with • double costs.
    Motion by the defendant to the Superior Court to set aside a verdict for the plaintiff, on the ground of newly discovered evidence. Hearing before Allen, J., who allowed a bill of exceptions in substance as follows:
    The original action was in contract to recover a balance of $2756.54, for brick and stone work in the erection of a church in Amesbury. The contract price for the brick work was $20 a thousand, and, the contract provided that the bricks should be measured in the walls when the work was finished, and that twenty-five bricks should be allowed for each cubic foot. The only issue tried was as to the quantity of bricks laid.
    
      The plaintiff called two witnesses who testified to measurements of the brick work, one of whom testified that he had made careful and exact measurements, and had made a diagram of the building, containing his measurements of each part; that the measurements so appearing on his diagram were correct, and that his testimony as to the number of bricks laid was based upon his measurements as represented thereon. The diagram was offered in evidence by the plaintiff, but excluded on the defendant’s objection. The witness was cross-examined by the defendant as to his measurements of some particular parts, and used the diagram to refresh his memory.
    The defendant called two witnesses who testified to the results of measurements made by them, the measurements of one of them showing about eighty thousand, and those of the other about sixty thousand fewer bricks laid than was testified to by the plaintiff’s witnesses.
    At the hearing on the motion for a new trial, the defendant offered to prove that, after the trial, he sent competent persons to the church with the diagram, who went over all the measurements set down in it, and found several of them to be erroneous and untrue; and that the length and height and thickness of certain parts of the walls were so incorrectly set down in the diagram as to make it appear that there were over seventy thousand bricks more than would be shown by correct measurements.
    The judge decided that upon these facts, if proved, the verdict ought not to be set aside, refused to hear the evidence, and overruled the motion. The defendant alleged exceptions.
    
      O. F. Donnelly,<for the defendant.
    
      S. B. Ives, Jr., for the plaintiff, moved for double costs.
   By the Court.

The bill of exceptions does not show that the presiding judge excluded from his consideration any evidence offered by the defendant, or ruled on any question of law; but only that, assuming the truth of the facts offered to be proved, the judge, in the exercise of his discretion, refused to grant a new trial. Such refusal is clearly not a matter of ex oeption. Fxcej-tions overruled, with double costs.  