¶1This was an action by Carr against tbe appellant. Trial; verdict and judgment for tbe plaintiff.
¶2It is claimed that tbe verdict is not sustained by the evidence, and that tbe Court erred in giving and refusing instructions.
¶3Tbe evidence can not be regarded as in tbe record. Some testimony is set out, and it is certified that “tbe above and foregoing testimony was tbe testimony, and all tbe testimony, given in tbe said cause.” This was not a compliance with tbe 30th rule. It has been held in several cases that tbe word “testimony” is not synonymous with evidence.
¶4Yo special objection has been pointed out to tbe instructions given, and we think they are right as applied to a state of facts that might have been proven. Tbe instructions refused, if right in tbe abstract, may have been refused because inapplicable to tbe case made by tbe evidence.
¶5Tbe judgment below is affirmed, with costs.