#### Newton D. Clark, Plaintiff in Error, v. Jonathan C. Willis, Defendant in Error.

ERROR TO POPE.

In order to reverse a judgment because a now trial was refused, the whole of the evidence must be presented by the bill of exceptions.

This cause was heard before Parrish, Judge, at April term, 1854, of Pope Circuit Court.

T. G. C. Davts, for Plaintiff in Error.

J. A. Logan, for Defendant in Error.

Treat, C. J.

Clark brought an action of trespass against Willis. It was tried by a jury, who returned a verdict for the defendant. The court overruled a motion for a new trial, and rendered judgment on the verdict. The refusal to grant a new trial is assigned for error. This assignment cannot be considered. To reverse a judgment, it must affirmatively appear from the record that error has been committed. Such is not the case with this record. The bill of exceptions does not purport to contain all of the evidence. The court, therefore, cannot say that the finding of the jury was erroneous. The testimony may have fully warranted the verdict. The whole of the evidence ought to be incorporated in the bill of exceptions, to enable this court to review the decision of the jury. As this is not done, the court must intend that the evidence was sufficient to sustain their verdict. Harmon v. Thornton, 2 Scam. 351; Rowan v. Dosh, 4 ibid. 460; Bates v. Bulkley, 2 Gilm. 389; Granger v. Warrington, 3 ibid. 299; Webster v. Enfield, 5 ibid. 298; Buckmaster v. Cool, 12 Ill. 74.

The judgment is affirmed.

Judgment affirmed.