No. 6—2166.

#### Barnum Blake v. David T. Miller.

The only error assigned is, that the court proceeded to the trial of the cause and gave judgment without a replication to the special plea. It does not appear from the certificate of the clerk, that the transcript is a perfect and complete copy of the record. There appears indorsed upon the writ of error, a statement by the clerk that, as his return to said writ, he attached thereto a certified copy of the record and proceedings in the cause, but on examining the clerk’s certificate to the document attached, the court finds that it entirely fails to c.-rtify that the papers to which it refers, constitute the whole or any part of the record in this cause. The court is not informed and can not judicially know from such certificate that there may not have been a proper replication on file at the date of the trial, and that such replication may not be *646now among the files. In the absence of anything in the record conclusively showing the contrary, the recital in the j udgmont order that the issues were then joined must prevail, and it must accordingly be assumed as a fact affirmatively shown by the record, that a replication had been filed.

Judge below, Elliott Anthony.

Attorneys, for plaintiff in error, Hr. Bo beet Hervey ;

for de'endant in error, Hr James Feake.

Opinion filed March 31, 1886.

Opinion by Bailey, P. J.