A motion is made to dismiss the appeal, because of the clerk’s defective certificate to the transcript of. appeal, appellee contending that it is insufficient.

The clerk certified, at the close of the transcript, “ that the foregoing pages contained a true and correct transcript of all the1 proceedings had, as well as of all the documents filed, all the minutes of the court, and all the evidence adduced by the parties, except the note of evidence taken on a former trial.”

We understand that part of the clerk’s certificate, " except the note of evidence taken on a former trial,” to mean except the evidence taken on a former trial.

The proceedings of the Court show that the former trial was on the merits.

We think the certificate is sufficient, for the reason that it shows that we have before us all that can be examined by us of the proceedings of • the lower court, and of the evidence taken therein.

It would have been useless to copy evidence taken at a former trial, as we could not examine it, not having been offered and received in the second trial. Defendant, sued on his note by plaintiff, pleaded various items of payment, averred that he had more than paid the note, and for the excess, $24 75, asked judgment against plaintiff.

The case was tried by a jury, and the Judge, pursuant to their verdict, rendered judgment in favor of defendant for $24 75, less one month’s interest, at five per cent., on defendant’s note. From the judgment plaintiff appealed.

Defendant’s note is for $850, and there being no stipulation for interest, it bore five per cent, interest from the time it was due, the 5th March, 1864.

It is proved that defendant had claims amounting to $160 75 against plaintiff, when the note was due, which bore interest of like rate with it, and that plaintiff agreed that that sum should be credited on it.

The other items set up by defendant, as payments, are fully proved, and there is satisfactory evidence that, by agreement between plaintiff and defendant they were to be payments on the note; but the evidence is not clear when some of the payments were made, though it appears that all were made in the year 1864.

We are satisfied from the evidence, that defendant had paid on the 31st August, 1864, $585, and on the 31st December, 1864, $125.

By calculating the interest on the note, it will be found that defendant paid plaintiff $‘2 02 more than he owed him.

This is evidently a vexatious suit on the part of plaintiff, and it is with regret that we have to reverse the judgment, and thereby cause defendant to pay the costs of appeal.

Let the motion to dismiss the appeal be overruled. Let the judgment of the District Court be annulled and reversed, and let there be judgment in favor of defendant and against plaintiff for two dollars and two cents; plaintiff to pay the costs of suit in the lower court, those of appeal to be borne by defendant.