
    Wheeling,
    George Dawson vs. Davis Prichard.
    July Term, 1871.
    1. Where a bill of exceptions taken on the refusal of the court to exclude from Die,jury certain evidence, which had been given on behalf of the plaintiff, and received without objection, which tended to prove certain facts, fails to set out tliH evidence produced, and where it also does not appear at what time the motion was made; although it would seem to lie improper evidence, yet, in the absence of it, and without knowing the position of the parties and the circumstances under which Die motion to exclude was made, this court cannot determine whether it was improperly overruled or not; or that the evidence received without objection, may not possibly have been admissible at the time it was offered.
    2. A bill of exceptions alleges that the. defendant offered evidence tending to rebut and disprove the plaintiff's testimony referred to in the. bill, and that the evidence so offered was excluded; which is held erroneous, no grounds for the exclusion being apparent.
    8. A ease in which the grounds on which a motion for a new trial was based, were held insnilieient.
    This was an action of assumpsit brought by Davis Prichard against George Dawson, in the circuit court of Marion county, to March rules, 1868. The plaintiff filed a bill of particulars containing numerous items of account, among others one charging the defendant with the payment of a certain order on one Burgoyne in favor of one Dudley, drawn by the defendant.
    The record appears confused and is greatly deficient in the incidents of the trial. But it appears by a bill of exceptions that after the plaintiff had introduced evidence tending to prove bis account, and especially the item in relation to the order before mentioned, and that a settlement had been had between plaintiff and defendant, and that a certain note in satisfaction of the amount found due tbe plaintiff, bad been assigned to bis wife by the defendant, (which note was not specified in the bill of particulars, however,) that tbe defendant offered to introduce evidence tending to prove that no settlement had been had between the parties, and that the note was not assigned to the wife of the plaintiff. But the court overruled the defendant’s motion to introduce such testimony.
    The jury found for the plaintiff, and the court rendered judgment thereon, after overruling a motion to set the verdict aside and grant a new trial.
    The defendant brought the case here on a writ of error.
    
      George II. Lee for the plaintiff' in error.
    
      A. F. Haymoncl for the defendant in error.
   Beriíshire, P.

The other judges concurred.

JudgMent Reversed.  