The first exception to his Honor’s charge is, that he failed to recite the testimony upon the rescission of* the contract a seooud time, when his attention was called to it.
*318It is the duty of the Judge “ to state in a full and correct manner the evidence given in the case.” Rev. Code, ch. 31, sec. 130. But he need state only such parts and so much as is necessary to aid the jury in passing upon the issues submitted. State v. Bipsey, 3 Dev. 485; State v. Harvey, 2 Dev. & Bat. 390; Bailey v. Poole 13 Ire. 404. All this we are to assume his Honor did ; indeed, it is stated in the case that he did. The exception that he did not recapitulate the testimony a second time is of the first impression in our practice. The exception is not favored.
After the verdict for the plaintiff, the defendant moved for a new trial upon the ground that his counsel had made a mistake in admitting in the answer that such a contract ever existed, and that he had not discovered the mistake until after the trial. This he offered to show by his own affidavit. His Honor refused a new trial, and the defendant excepted. If the alleged mistake had been satisfactorily proved, still his Honor might well have refused a new trial in the exercise of his discretion, because mistakes or want of. skill, or other faults of attorneys in the management of cases are not always excusable, and must usually be at the expense of their clients, and not of the clients on the other side. And certainly it was considerate in his Honor in this case not to rely upon the proffered affidavit of the defendant himself, after he had admitted in his answer that there was such a contract, but alleged that it had been rescinded, and upon the trial made no issue except upon the rescission. We do not think it necessary to enter into the discussion of the question whether the refusal to grant a new trial for the cause assigned was discretionary with his Honor, or whether we can review him, because, if discretionary, it is fatal to the defendant, having been exercised against him, and if subject to our review, we agree with his Honor.
There is no error. Judgment will be entered here for plaintiff.
Pee CuexaM. Judgment affirmed.