— The case is presented by a bill of exceptions on behalf of the plaintiff; and on behalf of the defendants by a motion to have the'verdict for the plaintiff set aside as against evidence.
The exceptions are taken to an omission to instruct the jury-respecting the right of the plaintiff to erect and maintain his dam, there having been no request for such instructions. It does not appear from the case, as presented, that such a question became material for consideration and decision by the jury. The exceptions must therefore be overruled.
The argument for the defendants upon the motion is not limited to the question whether the damages, other than those assessed for detention of logs, were excessive. It insists, that the jury had no legal right to find any such damages.
"While the argument for the plaintiff insists, that the case on the motion has not been properly presented; that all the material evidence has not been reported bearing upon that question.
The report does not purport to present all the evidence before the jury. •
The certificate of the presiding Justice stating, that it is a correct report of the evidence, so far as it had any bearing upon the question, whether the damages, other than those found for the detention of logs, were excessive.
On the motion, the case can only be entertained by virtue *231of the provisions of the Act of 1852, c. 246, § 8. The class of cases to be thus presented, comprehends “all motions for new trial upon evidence as reported by the presiding Justice.”
Was it the intention to authorize the presiding Justice to report such portion of the evidence as he might consider to be the whole relating to a particular point, or as material to a decision of it; or was it the intention to have the whole evidence submitted to the jury reported ?
What one Justice or one counsel might consider to be the whole or the material evidence bearing upon the point another might not.
The Court of law must regard the report as correctly made. This might subject the rights of a party to the control of the presiding Justice without affording him any relief for errors in the selection of what would present the whole or be material for a decision of the question.
If this be the true construction, it will introduce a practice entirely new and liable to occasion, as in this case, contests, whether all or all material evidence upon a point has been reported. The intention is believed to have been, not to introduce a change so important and objectionable, but to continue a former practice of allowing a party thinking himself aggrieved by a verdict, to present in an authenticated form all the evidence, on which that verdict was found for consideration by the Court.
This being regarded as the correct construction, the case is not so presented by the report as to enable the Court to act upon it. The motion not being properly sustained must be overruled.
Exceptions and motion overruled.
Rice, Appleton, and Cutting, J. J., concurred.