delivered the opinion of the court.
This action is brought for work and labour done by the plaintiffs for the defendant. The sum claimed is $ 1,100.
The defendant pleads, that the work was not finished within the time specified in the contract: that it was unskil-fully executed: that she was. compelled to employ other workmen to complete the building: that she has paid $585 on account: that by the plaintiffs neglect she could not commence making sugar at the proper season, and lost part of her crop. ■ She alleges her damages to amount to $ 2057 50 cents, and reconvenes the plaintiffs for the sum.
The cause was submitted to a jury, who found against the defendant for $ 291 12 cents. She made an unsuccessful attempt to obtain a new trial, and appealed.
There are one or two bills of exceptions on record, which we have considered as abandoned, no notice having been * falten of them .in the points filed, or observations addressed , ,. . IO me court-
The appellees insist that the merits cannot be inquired into , . 11 in' this court, as the record has not been properly certified.
is certified by the judge to contain all the evidence ad*165duced on the trial of the cause. And the record shews that the testimony was taken down in open court by the clerk’ during the trial. This we think a sufficient compliance with the provisions of our law on this subject. Code of Practice, 601, 603.
When nothing to the contrary appears the judge is presumed to have given his certificate on the event occurring which authorised him to give it. If the record ments were dpro-ihfifg shows'they were' filed> there is no evidence of a diminution of the record.When nothing to the contrary appears, the judge is presumed to have given his certificate on the event; occurring which authorised him to give it.
But it is said, the judge can only give a certificate when the transcript contains all the evidence, and that, from an examination of the record, it will be perceived that part, of the proof given on the trial does not come up.
If this were true, it might afford grounds for correcting the error, and supplying the deficiency, but none for holding the judge incapable’ of certifying. His certificate is one of the means given by law to enable this court to know whether all the evidence is sent up, and an error in the exercise of a power, offers no argument against that power being conferred. The receipts, which it is urged hre wanting to make the record complete, are stated to have been produced on the trial. This is true, but although the statement says they were produced, nothing-shews they -were fled, conset-
quently we have no evidence before us there is a diminution 1
of the record.
On the merits, we are contrained to state, that the proof adduced by the parties, has brought us to a conclusion so entirely different from that of the jury and the court below, that we must remand this cause for a new trial.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled; that the case be remanded to be proceeded in according to law, and that the appellees pay the costs of this appeal.