stated the facts of the case, and delivered the opinion of the court.

It appears by the bill of exceptions, that the exceptions were taken before the jury left the box, although the clerk states in the record, that the exceptions were taken on the motion for a new trial.

There is an assignment of errors. The case is submitted by consent,'briefs.

*376The defendant in error has raised the question, as to the time of taking the exceptions to the opinion of the court. We are of opinion, that, since the passage of the statute, allowing appeals and writs of error, on the decisions of the court, in granting and refusing motions for new trials, the court below, on such motion being made, should embody the evidence in the cause, whether excepted to or not. If this is not done, how is the court of appeals to judge of the correctness of the decision of the court below on motions for new trials.

The first error complained of, is, that the court erred in permitting an open unliquidated account against a deceased person, to be given in evidence as a set-off against a promissory note, executed after the dates of the items of the account. There is surely no error in this. A person may have various dealings with another at the same time, by bonds, notes, bills, and accounts. In all such cases, the jury must decide, from proof, positive or presumptive. In this case, the defendant it seems, offered satisfactory evidence, of the .consideration of the note which he gave to the deceased; and also of the running account between them, and of the services rendered.

The second error assigned, is, that the court erred in suffering the- three promissory notes, payable on their face to H. Glass, Scrimshaw and others, to go to the jury as sets-off, without proof that they were bona fide the property of the defendant before the death of the deceased, or action brought.

As to this matter, the court charged the jury, that they must be satisfied that the defendant held the notes lawfully, before the commencement of the action. In this, the court consulted the true principles of off-sets, and expressed it with becoming brevity, and it was, as expressed, by no means impertinent to the charge requested. The law forbidding judges from charging juries, unless. &c., should receive a liberal and reasonable construction, and such, I am informed, it has received from this court.

The answer to the second assignment, is an answer to the third.

We see no error in the record, and the judgment must be affirmed.