majority">Beriíshire, P.

The first objection urged against'the judgment complained of, is the action of the court in overruling the defendant’s motion to exclude from the jury certain evidence which had been given on behalf of the plaintiff, and received without objection, tending to prove certain facts set forth in the defendant’s first bill of exceptions; such evidence, it was insisted, not being proper or admissible under the declaration or bill of particulars filed with it. Except a certain note or obligation given or executed by Charles E. Burgoyne and Elias Dudley, to the defendant, for three hundred and fifty dollars, and a mutilated order drawn by the latter on said Burgoyne for two hundred dollars, in favor of Enoch W. Dudley, none of the evidence produced on the trial is set out in this bill of exceptions, and but little of it appears elsewhere in the record. Neither does it appear on the record, at what time the motion to exclude was made. While, therefore, evidence tending to prove items of account not described in the declaration nor found in the bill of particulars would seem to be improper, yet in the absence of the testiihony introduced, either by the plaintiff or defendant, and without knowing the position of the parties and the circumstances under which the motion to exclude was made, we cannot say that it was improperly overruled; nor that the evidence so received without objection may not possibly have been admissible at the time it was offered; and consequently that the court erred in refusing to exclude it. The next *20error assigned is that the court erred in refusing to permit tiie defendant to introduce evidence tending to rebut the evidence so introduced by the plaintiff, and disprove the facts which it is asserted in the bill of exceptions such evidence of the plaintiff tended to prove. It is difficult to perceive upon what principle this evidence was excluded, and I think the rulings of the court in this respect were erroneous. It was argued that, as it appears from the record that such evidence was, in fact, permitted to go to the jury, as shown by the deposition of the defendant, George Dawson, (which is copied into the record,) there was no such error in the rulings of the court, in this respect, as -would require a reversal of the judgment. I have realized much perplexity, upon the inspection of this deposition, in ascertaining what portion of it was in fact permitted to go in evidence to the jury, and ' what part was excluded. Many -exceptions were taken to it, and there seems to be much confusion in the record. The certificate of the clerk is, that “ the parts of this deposition was allowed by the court to be read in evidence to the jury which is included in brackets.” It cannot therefore be fairly implied, I think, that any other part of it was admitted. But the portion of the evidence so included in the brackets relates exclusively to the small items of the plaintiff's account, bearing date after the alleged settlement between the plaintiff and defendant. It cannot, therefore, be inferred that the part of the defendant’s deposition relating to the facts which it is alleged in his first bill of exceptions the plaintiff’s evidence tended to prove, was permitted to be read as evidence to the jury. But however this may be, the bill of exceptions distinctly asserts that the defendant offered evidence tending to rebut and disprove the plaintiff’s testimony referred to in said bill of exceptions, and that the evidence so offered, whether it was the defendant’s deposition or other evidence, was excluded. The remaining objection urged against the judgment is the refusal of the court to grant the defendant a new trial, upon the ground of surprise and new evidence discovered after the trial. The motion was based on the affidavit of D. J. Wamsley, which states, in substance, that sometime during the late civil war the plaintiff told affiant that the defendant had assigned or handed over to the *21plaintiff, or bis wife, for safe keeping, &c., certain valuable notes or bonds, evidences of debt and money, tlie defendant being afraid to keep the same about him, on account of the condition of the country. But it is not stated at what time they were so delivered, nor that the note or bond in controversy was one of them. At most, therefore, the evidence was only cumulative, and was not, in my judgment, sufficient of itself to require a new trial. For the error indicated the judgment must be reversed with costs and the cause remanded to the circuit court for further proceedings.

The other judges concurred.

JudgMent Reversed.

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