#### Ambrose P. Edwards et ux., plaintiffs in error, v. William Patterson, survivor, &c., defendants in error.

Error to Mason.

Affidavits and other papers copied into a record do not thereby become a part of the record. To make them evidence, they should be incorporated in a bill of exceptions.

Motion, in the Mason Circuit Court, to quash an execution and to set aside a sale thereon, because there was no seal on the execution. The cause came on for a hearing before the Hon. Samuel D. Lockwood, when the plaintiff in the execution entered a cross motion for leave to amend. At the May term, 1846, the latter motion was overruled, and the former allowed, quashing the execution and vacating the sale.

M. Me Connell, for the plaintiff in error.

M. Brayman, for the defendant in error.

The Opinion of the Court was delivered by

Treat, J.

The Circuit Court refused a motion made by the plaintiffs in error to amend an execution ; and then, at the instance of the other party, quashed the execution and set aside a sale made under it. The evidence on which the Court acted is not in the record. We cannot, therefore, inquire into the propriety of its decision. The Clerk has copied an affidavit and some other papers, but they are not thereby made a part of the record. A bill of exceptions should have been taken embodying the evidence. Corey v. Russell, 3 Gilm. 366.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.