This was a suit by the appellees, who were the plaintiffs, against the appellants, to correct a mistake in a deed. The cause was submitted on complaint, answer and proofs. The Court found for the plaintiffs. A motion for a new trial was overruled, and a decree rendered, &c. There is a bill of exceptions, which, after setting forth certain written and oral testimony given on the trial, states thus: “ Whole testimony.”
The appellees refer to rule 80 of this Court, and contend that under it the statement in the bill is not sufficient to show that the record contains all the evidence. That rule was in force when this cause was tried, and is as follows: “ In every bill of exceptions, purporting to set out the evidence upon motion for a new trial overruled, the words ‘ this was .all the evidence given in the cause,’ are to be regarded as technical, and indispensable to repel the presumption of other evidence.” It will at once be seen, that the phrase “whole testimony,” does not meet the requirement of the rule: hence, we are not allowed to presume that all the evidence given on the trial is contained in the bill of exceptions.
However, admitting that the record does contain all the evidence, still the decree must stand. We have examined it carefully, and are decidedly of opinion that its weight accords with the decision of the Circuit Court.
The decree must be affirmed.
R. D. Logan, for the appellants. A. W. Hubbard and L. W. Sexton, for the appellees. Per Curiam.The decree is affirmed with costs.