
    Bush v. Mahon.
    A bill to obtain a discovery of facts within the knowledge of the defendant ; and for a new trial at law, on the ground that the memorandum of the evidence on the trial was accidentally lost, so that it could not be set forth in a bill of exceptions. Demurrer to the bill sustained. Held, that there was no error in this, as the bill did not show that the testimony of the defendant could not have been obtained on the trial, and that the loss of the written statement of .the evidence could have been remedied by the exercise of proper diligence.
    ERROR to tbe Allen Circuit Court.
    
      Wednesday, May 29.
   Smith, J.

This was a bill in chancery filed by the plaintiff in error, alleging that, in the year 1840, he was employed by the defendant in error to fit up and repair a certain keel boat, and that he did work on said boat to the value of 24 dollars and 8T?¡- cents; that he instituted a suit before a justice of the peace and recovered a judgment for that amount; that the defendant appealed, and, on the trial in the Circuit Court, he, the plaintiff, recovered a judgment for 6j- cents only; that a motion for a new trial made by his attorney was overruled; and that the testimony given in evidence was reduced to writing, but, as he is advised, was accidentally mislaid, so that it could not be set forth in a bill of exceptions.

H. Cooper, for the plaintiff.

The complainant also alleges that he duly subpoenaed the defendant, by whom he expected to prove the justice of his account, to give evidence upon the trial, but that the defendant failed to attend, and the complainant was obliged to enter upon the trial without the defendant’s testimony. The present bill was filed to obtain a discovery of the facts within the knowledge of the defendant and a new trial at law.

The bill was demurred to, and the demurrer was sustained.

"We think there was no error in the decision of the Circuit Court. There is nothing in the bill which shows that the testimony of the defendant could not have been obtained at the trial, or that the loss of a written statement of the evidence given might not have been remedied, by the exercise of proper diligence.

Per Curiam.

The decree is affirmed with costs, &c.  