#### ABRAHAM MOSS, Plaintiff in Error, *vs.*GEORGE VROMAN, Defendant in Error.

ERROR TO THE DANE CIRCUIT COURT.

A motion for a new trial on the ground of newly discovered evidence, should set out the evidence, that the court may judge of its materiality.

A motion for a new trial based upon newly discovered evidence, should be overruled unless such evidence be set out in the motion or affidavit on which it is founded.

This court will not notice an objection to the ruling of the court below as to the admission or rejection of evidence, unless such ruling be excepted to, and the same brought to the record by bill of exceptions.

Exceptions to the ruling of the judge when he tries an issue of fact are as necessary and essential as when the cause is tried by a jury.

This court will not interfere with tbe finding of the court or jury on tbe mere ground that such finding is against the weight of evidence.

What is, and is not a proper book account in contemplation of the statute.

This was an action of assumpsit commenced by tbe defendant in error against tbe plaintiff in error by tbe service of declaration and rule. Tbe declaration was for work and labor, and tbe money counts. Plea, general issue, witb notice of special matter.

Tbe cause was tried at tbe November term, á.. D. 1855, by tbe court, a jury baying been waived, by tbe parties. Tbe plaintiff offered in evidence wbat be claimed to be bis book account, and being sworn to verify tbe same according to the statute, be testified tbat tbe book offered “ was bis account book kept for tbat purpose, that'it contained tbe original entries made at, or about tbe time they purport to have been made; tbat they were in bis own bandwriting and were just and true.” And being cross-examined, be testified as follows :

“ Tbe charges for grain are for grain raised on my farm by tbe said defendant. Said farm was leased originally to said defendant and one Turner, but before they raised any grain, Turner left tbe country, be having given up tbe lease to defendant. *148Then defendant went on and raised the grain on his own account individually. The farm was leased to them jointly in writing, hut Moss bought out Turner, took the amount of grain from Moss’s books and Abbott’s books. Abbott threshed the grain; have never had any of the grain raised last year; the lease expired six years ago next spring. Moss had it two years; lease was put into Mr. Haus’s hands to be kept and only to be given up by consent of both parties; don’t know what became of it; never had any settlement with defendant.

“ The book was then offered in evidence; objected to by defendant’s counsel. Court remarked ‘he would receive it for what it was worth.’ — The book contained charges against the defendant, as follows, to wit:

“ Abraham Moss to George Yroman, Dr.

1848, Jan. 10th. To paid your order to S. E. Honn, for cradle and grass scythe, $7.00

1849, To grain raised on my farm in A. D. 1849, 740 bushels of bats (one-third of 2,222), at 25 cents per bushel, $185.00

“ To 106 bushels of wheat (one-third of 318), 50 cents per bushel, 53.00

“ To 60 bushels of potatoes (one-third of 180), 25 cents per bushel, 15.00

May 15. 1849. One cow bought from me on the farm, 15.00

Oct. 8. Paid to Dr. Chapman by your order, 12.00

$287.00

The defendant admitted the first two items charged in the plaintiff’s account. There was other testimony offered and received, among which was that of both the parties to the suit. The court found for the plaintiff, one hundred and thirty dollars, and rendered judgment accordingly.

The counsel for the defendant then moved the court for a new trial, founded upon an affidavit of the defendant's attorney, to *149tbe effect that tbe defendant was taken by surprise at tbe nature and kind of tbe evidence admitted; and that since tbe trial, tbe defendant bad discovered new and important testimony in bis favor; without setting out tbe evidence alleged to have been newly discovered. Tbe court overruled tbe motion, and tbe defendant excepted.

*Remington & Rollins,*for tbe'plaintiff in error.

*M. IS.*Orton, for tbe defendant in error.

*By the Court,*

Smith, J.

Tbe only exception taken to tbe ruling of tbe court below in this case, and tbe only error assigned is, upon overruling the motion for a new trial.

Tbe motion was predicated upon tbe ground of surprise, and of newly discovered evidence, but does not disclose such evidence. Upon this latter ground, therefore, tbe motion should fail. Whenever a motion for a new trial is based upon newly discovered evidence, that evidence should be particularly set forth, so that tbe court may judge of its materiality. This was not done, and tbe motion, for this assigned cause, was properly overruled.

In regard to tbe allegation of surprise, we are not able to perceive upon what it is in fact predicated. It appears that tbe evidence upon which tbe plaintiff below recovered was, bis book account verified by bis oath. This was objected to, and received “ for what it was worth,” but no exception was taken to its reception in this manner. It was equivalent to deciding, that tbe testimony was competent in kind, and tbe weight or effect thereof was to be left to tbe jury. No exception was taken to this ruling, and tbe presumption is, that it was acquiesced in by the defendant below. There is no doubt that if an exception bad been taken to tbe ruling of tbe judge admitting the book in evidence, and tbe party excepting bad brought such decision to tbe record, the exception would have prevailed. Tbe character of tbe charges, want of dates, and other characteristics of tbe paper *150sworn to by the plaintiff below, indicate clearly, that it never could have been a regular book account, such as is contemplated by the statute, and ought not to have been received in evidence.

But, as no exception was taken to its admission, we do not perceive any remedy. Exceptions to the ruling of the judge, when he tries the issue, are as essential as in cases where the issue is tried by a jury. Nor can a party be said, in a legal sense, to be surprised at the admission of evidence to which he takes no exception. We repeat, that the papers called on account book, admitted in this case, ought, not to have been received, if the statement of the case represents them truly, and it may well be that great injustice has been done. But we can perceive no legal mode of redressing the injury, if such there may have occurred, for want of proper exceptions taken.

It was insisted by the counsel, there was not sufficient evidence before the court below to sustain its finding. But the book having been admitted, and not brought within our review by exception, we cannot say that a jury, upon evidence of such kind, admitted by the court, would so grossly have erred as to justify the intervention of this court. There was some evidence admitted upon which the finding was based, and if ¡parties desire to have such matters reviewed, they must present them in a proper manner.

Judgment affirmed, with costs.