
    
      CRAWFORD ET AL. vs. JEWELL.
    
    APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE THEREOP PRESIDING.
    Where the record shows that the testimony was taken down by the cleric. no objection can be made to (he certificate of the judge, that the record contains all the evidence adduced.
    Eastern District,
    
      January 1831.
    when nothing to the contrary appears, the judge is presumed to have given his certificate on the event occurring which authorized him'to give it.
    If £ihe record show that documents were produced, when nothing shows they were filed, there is no evidence of a diminution of the record.
    This was an action for work- and labour, in which the plaintiff had a verdict, and the defendant appealed.
    On the trial of the cause, certain receipts were produced> which did not come up with the record. The clerk certified that the evidence was taken down in writing in open court, and that the record contained a true and faithful transcript of all the proceedings, as well as of the documents filed in the suit. This was followed by the certificate of the judge that the record contained all the evidence adduced on the trial.
    
      Turner, for appellees, contended:
    X. The merits cannot be gone into, as the appeal is not properly certified. C. P. art. 586, 896 — 8 Martin N. S' 303.
    2. The record does not contain all the evidence; three receipts are mentioned as produced, and they do not appear.
    3. The clerk has not certified to any evidence, but that which was taken from the mouth of the witnesses, and they do not prove the amount, but only the signature to . the receipts.
    4. It is a case where the judge cannot certify — he can only certify in those cases where the record contains all; but where the record itself shows that it has not all, then the certificate cannot avail.
    
      Morgan and Ogden contra:
    1. The appeal is properly certified. The testimony was taken in writing in open court,, as appeal’s from the certificate of the clerk, therefore no statement of facts was necessary and the judge could certify as he has done — C. P. art. 585, 586.
    2. The judge, it may fairly be presumed, was not called upon to certify, without an attempt, first having been made, to obtain an agreed statement of facts, and that he did not certify until convinced that his duty and the law required it.
    1flr}iere r6“ cord shows that the testimony was taken down by the clerk, ho objection can he made to the certificate of the evidence adduced.
    
      3. The case cited by plaintiffs from 8th Martin, N. S. does not apply; because there the evidence had not been taken in writing in open court. The decision is grounded upon arts. 602 and 603 of the Code of Practice, and those articles provide for the case, “ where the depositions of witnesses have not been taken in writing in the inferior court.”
    4. The verdict of the jury is entirely unsupported by the evidence, and the motion for a new trial ought to have prevailed. Weathersby vs. Latham ; 7 Martin, N. S. 310, Belden et al vs. Rose; 8 Martin, N. S. 167.
   Porter J.

delivered the opinion of the court.

This action is brought for work and labour done by the plaintiffs for the defendant. The sum claimed is $ 1,100.

The defendant pleads, that the work was not finished within the time specified in the contract: that it was unskil-fully executed: that she was. compelled to employ other workmen to complete the building: that she has paid $585 on account: that by the plaintiffs neglect she could not commence making sugar at the proper season, and lost part of her crop. ■ She alleges her damages to amount to $ 2057 50 cents, and reconvenes the plaintiffs for the sum.

The cause was submitted to a jury, who found against the defendant for $ 291 12 cents. She made an unsuccessful attempt to obtain a new trial, and appealed.

There are one or two bills of exceptions on record, which we have considered as abandoned, no notice having been * falten of them .in the points filed, or observations addressed , ,. . IO me court-

The appellees insist that the merits cannot be inquired into , . 11 in' this court, as the record has not been properly certified.

is certified by the judge to contain all the evidence adduced on the trial of the cause. And the record shews that the testimony was taken down in open court by the clerk’ during the trial. This we think a sufficient compliance with the provisions of our law on this subject. Code of Practice, 601, 603.

When nothing to the contrary appears the judge is presumed to have given his certificate on the event occurring which authorised him to give it.

If the record ments were dpro-ihfifg shows'they were' filed> there is no evidence of a diminution of the record.

When nothing to the contrary appears, the judge is presumed to have given his certificate on the event; occurring which authorised him to give it.

But it is said, the judge can only give a certificate when the transcript contains all the evidence, and that, from an examination of the record, it will be perceived that part, of the proof given on the trial does not come up.

If this were true, it might afford grounds for correcting the error, and supplying the deficiency, but none for holding the judge incapable’ of certifying. His certificate is one of the means given by law to enable this court to know whether all the evidence is sent up, and an error in the exercise of a power, offers no argument against that power being conferred. The receipts, which it is urged hre wanting to make the record complete, are stated to have been produced on the trial. This is true, but although the statement says they were produced, nothing-shews they -were fled, conset-

quently we have no evidence before us there is a diminution 1

of the record.

On the merits, we are contrained to state, that the proof adduced by the parties, has brought us to a conclusion so entirely different from that of the jury and the court below, that we must remand this cause for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled; that the case be remanded to be proceeded in according to law, and that the appellees pay the costs of this appeal.  