
    Leach v. Lebuzan & Stanton.
    ,C. had not been sworn, and it did not appear that he had been called as a witness in the circuit court, but was questioned as to the genuineness of the signature of the defendant to a bill of particulars: Held, the court cannot determine whether the question was propounded as testimony or not; hut will presume there was. sufficient evidence of the justness of the account before the jury, unless the contrary is shown.
    ERROR to the Lowndes circuit court.
    Tucker and Bennett, for plaintiff in error.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The facts contained in the bill of exceptions, present the only questions for our adjudication. The first objection is, that after having read the bill of particulars filed with the declaration, the plaintiff inquired of one Thomas Christian, without first having him sworn, whether the name written at the bottom'of the bill of particulars was in the handwriting of the defendant. The action was for work and labor and for goods sold. If the said Christian was a witness, it was improper to examine him without first having him sworn; but we cannot determine from the bill of exceptions whether such an inquiry was pertinent or not, or whether it was propounded to him in the character of a witness. The action being founded on an account, we must presume that there was sufficient evidence of the justness of that account, unless the contrary is shown, and the bill of exceptions does not inform us whether there was other evidence or not. It may be that this question was asked after the account had been fully proved. If so, it was wholly immaterial, and the answer, whether made on oath or not, could not affect the right of recovery. We cannot know from any thing that appears in the bill-of exceptions, that this was the only testimony offered in support of the account, for the bill of exceptions does not inform us. It is true that this seems to have been the closing part of the testimony; but it does not appear but what it was preceded by sufficient evidence.

The defendant then moved the court to charge the jury, that if the plaintiff had not proved his account, they must find for the defendant. The court very properly gave the charge, and the jury found for the plaintiff. We must necessarily conclude that the plaintiff had proved his account to the satisfaction of the jury. A motion was then made for a new trial, which was overruled. We cannot tell whether it was properly overruled or not, unless all the testimony was before us. If no other testimony was given except the declaration of Christian, made without being under oath, it was probably insufficient, but we have nothing to justify us in the conclusion that this was the only testimony.

•If the bill of exceptions was intended to show such a fact, it falls very far short of its purpose, and in the absence of any showing to the contrary, we must presume that the court acted correctly in overruling the motion for a new trial.

The judgment must be affirmed.  