#### Jonathan Browder, Appellant, v. Jeremiah Johnson, Appellee.

APPEAL FROM WASHINGTON.

This court can not and will not look at things the clerk may, without authority and irregularly, incorporate into the record.

Opinion of the Court by

Justice Smith.

This was an action of covenant for rent, and a verdict was rendered against the appellant in the court below, who applied to the court for a new trial, on the grounds that the verdict was against law and evidence, that the damages were excessive, and that the jury acted under mistaken impressions as to the right of the parties. This application was refused. The.imperfect state of the pleadings and the record, render it extremely difficult to say what ought to be done in reviewing the cause. It seems, by looking into the pleas and replications, that a perfectly immaterial issue has been made between the parties, and is in some measure the cause of the novel manner in which the record recites the proceedings had in the cause. Whether the court ought to look into a question which would naturally present itself in this state of the pleadings when it is not assigned for error, and was not noticed in the argument, is a matter on which they will not now decide, nor what effect it might have had in determining this cause. The only question which the counsel on both sides have presented for the consideration of the court is, whether the court below acted correctly in refusing the application for a new trial. From the state of the record, as the evidence on the trial has not been embodied in a bill of exceptions, and the affidavit of one or more of the jurors could only have been regularly brought before this court by being also incorporated in the exception of the counsel to the decision of the coart in refusing a new trial; on that ground, the court can not perceive the most distant means of ascertaining whether the court could have erred, in its refusal to grant the new trial. It becomes therefore impossible, from the manner in which the question is presented, to inquire into the causes of error. It is true, the clerk has, without authority, and very irregularly, incorporated the affidavit in the record, but still the court ought not, and can not notice it, though if they were disposed to overlook the irregularity in the present case, they could not say that the court below ought to have received the affidavit of *97the jurors, to impeach or set aside their verdict. (a) There then being no point regularly before the court, and being in this instance not disposed to examine into causes of error not assigned nor noticed in the argument, (though if injustice were likely to happen, they do not say that they would not feel it their duty to examine and decide points of importance which may have escaped the examination of counsel,) they must affirm the judgment of the court below with costs. (1)

Starr, for paintiff in error,

McRoberts, for defendant in error.

Judgment affirmed.

(a)

See Sawyer v. Stephenson, ante, page 24. Forester, &c. v. Guard, Siddell & Co., page 74.

(1)

In relation to an affidavit, copied into the record but not preserved by a bill of exceptions, the court used the following language: “ We have often and uniformly held, that to entitle papers and proceedings of this character to notice in this court they must either be copied into, or so specifically referred to by the bill of exceptions, as to leave no doubt of their identity, and that the party intends to rely on them in support of his case.” Hatch v. Potter, 2 Gilm., 725. And to the same effect are Rust v. Frothingham, et al., post. Sims v. Hugsby, id. McLaughlin v. Walsh, 3 Scam., 185. Cummings v. McKinney, 4 Scam., 59. Saunders v. McCollins, id., 419. Corey v. Russell, 3 Gilm., 366. Edwards v. Patterson, 5 Gilm., 126. Petty v. Scott, id., 209. Holmes v. The People, id., 480. Mann v. Russell, 11 Ill., 586. Magher v. Howe, 12 Ill., 379. McBain v. Enloe, 13 Ill., 78. Moss v. Flint et al , id., 572. McDonald v. Arnout, 14 Ill., 58.