#### Dennis Culliner v. John H. Nash.

1. Bill of exceptions—must show all the evidence—when. Where a bill of exceptions fails to state that it contains all the evidence, this court will not examine to see if that which appears in the record does sustain the verdict.

2. Same—making of, a judicial act. The malting of a bill of exceptions is a judicial act, and can not be delegated. Therefore a certificate of one styling himself “reporter,” that the bill contains all the evidence, will not be considered. The judge alone can certify to such fact.

Appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.

This was an action of assumpsit, brought by John H. Nash against Dennis Culliner, upon a promissory note. The plaintiff recovered judgment, and the defendant appealed.

Messrs. Fullerton & Rogers, for the appellant.

Messrs. Dearborn & Campbell, and Mr. John W. Pit-man, for the appellee.

Mr. Justice Scholfield

delivered the opinion of the Court:

The questions discussed by appellant depend entirely upon what the evidence was in the court below. It has been many times declared by this court, that where the bill of exceptions fails to state that it contains all the evidence, we will not examine to see whether that which appears in the record does sustain the verdict. The bill of exceptions in this record fails to state that it contains all the evidence given on the trial. There is a certificate to that effect, signed by one Watson, who styles himself “reporter.” We are aware of no law authorizing such a certificate to be accepted by us, in lieu of *516the proper statement in the bill of exceptions, signed by the judge. We have no doubt that this individual may be a man of truth and respectability, still the law gives him no power to usurp the province of the judge, and certify to us what evidence was given. If the judge knew that the evidence, as taken down by the reporter, was correctly reported and copied in the bill of exceptions, it was for him and not the reporter to so certify. The making of the bill of exceptions is a judicial act, and it can, not be delegated. Emerson v. Clark, 2 Scam. 489.

The judgment is affirmed.

Judgment affirmed.