majority"> Bratton, J.

This action is brought to recover of a stakeholder a sum of $1,000, alleged to have been money deposited in his hands, upon a bet upon the last presidential election, which the plaintiff withdrew before the election, and demanded the money from the defendant.

A verdict was rendered for the plaintiff.

The defendant moves for a new trial, as stated in the brief, on three grounds: — First. That the verdict was against the law, inasmuch as the verdict was for $1,000 without interest; whereas, if he recovered at all, he was entitled to the interest on that sum. Were this the only ground of objection to the verdict, it might be amended by consent, or the defendant might pay the additional sum, without a verdict.

But he objects, secondly, that the verdict is against the evidence in the cause, in that there was no evidence that the bet was upon any election.. The statement of the evidence, allowed by the justice who tried the cause, shows that it was given by the only witness in the cause. By the rule of the Court, no'such cause shall be heard unless accompanied by a statement of the evidence submitted to the Judge who tried the cause, within five days after trial, or within such further time as shall be allowed by him. The object of the rule is, to have the evidence settled before the question of law shall be heard, and not to have the jury trial repeated before the Court.

If the statement made under the rule is to stand, or, in other words, if the rule is to be strictly adhered to and enforced, there is an end of this objection.

The counsel for the defendant claimed that he had a right, notwithstanding the rule, to produce affidavits to show that the Judge was mistaken, and that the witness did not testify as to the sub-1 *369 jeet of the bet, and. tbat his statement of tbe evidence is incorrect in tbat particular. He was allowed to submit bis brief upon tbe proof and also tbe affidavits, wbicb be proposed to use, if permitted to do so in tbe bearing.

"We do not feel disposed, nor do we think it advisable, to waive tbe rule. It is, in our view, a salutary rule, calculated to bring before tbe court a correct statement of tbe evidence,, and to ascertain it with greater certainty than by any other mode. Tbe evil, wbicb bears upon the' defendant, in this case, may be relieved, with proper diligence, by any party, without abrogating tbe rule. It is a matter of necessity tbat it be ascertained, before the bearing, what tbe evidence before tbe jury was. When tbe Judge declines to certify, tbe party should at once move. He may offer tbe Judge bis affidavit at once.

In this case, however, we have examined tbe affidavit proposed to be offered, with those offered upon tbe same point by tbe plaintiff, and they show us tbe propriety of tbe rule. These affidavits leave tbe matter in doubt, if it stood upon them alone.

It appears tbat tbe evidence, as it is stated by tbe defendant, was, that tbe plaintiff testified tbat tbe bet was made just before tbe presidential election, and on tbe Saturday preceding that election be called on tbe defendant to withdraw tbe bet. Tbe defendant was present at tbe trial, and be knew if tbe bet concerned tbat election. He did not offer himself as a witness to testify it did not, and tbe counsel argued to the, jury, in tbe presence of tbe person who knew, tbat it was not upon tbat election. What would a jury naturally say to themselves ? What more natural than to ask, Why, if it were not so, does not tbe defendant say so ?

Suppose it were tbe only ground for a new trial, tbat it was not proved upon what election tbe bet was made, and tbat, by some omission of tbe plaintiff, proof was not, in fact, offered ? Is it worth while, — does justice require, — tbat we should send it back to tbe jury merely to supply tbat, tbe fact itself not being in question? Nobody questioned here, at tbe bearing, tbat tbe bet was.upon tbe presidential election, and, in fact, tbe verdict is right, and justice is done. New trial denied.

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