| Mo. | Apr 15, 1830
delivered the opinion of the Court.
This was an action brought by Montgomery against Farrar in the Circuit Court, in which Montgomery had judgment. To reverse which, Farrar now prosecutes his writ of error. The evidence is all preserved by what is termed a bill of exceptions, beginning, “ be it remembered that upon the trial of this cause, the plaintiff gave in evidence,” &c., (setting out the evidence,) and concluding in these words, “ all of which testimony the defendant moved the Court to exclude from the jury, as not being sufficient to support the plaintiff’s action, which motion the Court overruled, to which opinion of the Court the defendant excepted.”
Without entering into a minute examination, some of the evidence given in the cause was clearly competent, and whether sufficient or not, was for the jury and not (190) for the Court to weigh and determine. This point has been repeatedly adjudged by this Court. If the jury, or the Court sitting as a jury, find a verdict without evidence, or upon insufficient evidence, the proper course is to move for a ¡new trial, and except to the opinion of the Court in granting or refusing the motion. If in the progress of the cause, incompetent evidence is offered, the party against whom it is offered should except, for it might well be, that the party offering incompetent testimony could sustain his cause by other and competent proof.
The judgment of the Circuit Court is, therefore, affirmed with costs..