By the Court,
it is true, the bill of exceptions does not state that all the evidence is set out. But we do not conceive that it was one of those cases in which the presumptions of law are in favor of the verdict, upon the ground that there may have been other sufficient evidence to support it. The depositions were read. We are ignorant of the influence they may have had upon the finding <of the jury; and it is presumed they had some influence, or the plaintiff below would not have introduced them. We have declared they were not proper testimony. Upon the same principle, this court will set asi'de a judgment, where the judge, before whom the cause is tried, has erred in giving or refusing instructions. If a party applies for new trial, and, upon its refusal, appeals, he must then set out all the evidence, to enable the revising tribunal to see if there is any error in the proceedings of ihe court below, otherwise the judgment will be affirmed. This case does not come within the rule. It is enough to show the materiality of the testimony, and its direct application to the issue between the parties. Instructions abstract in principle, and testimony immaterial in the issue tried, would not authorize a court to reverse the finding. But such is not the case, in the present instance; and we can seé no sufficient cause for opening the judgment of this court.
Petition refused, and judgment reversed.