
    
      Talbot vs. Miller, &c.
    Ejectment.
    Cqse 45.
    
    Appeal from the Oldham Circuit; Henry. Davidge, Judge.
    
      Ejectment. Evidence. Bill of exceptions. Presumption. Practice. Mezo trial.
    
    April 13.
    Statement of the case,
    The court oanno.tre" ment unless error appear *he record,
    Where no evsumption^n" favor of the ?0,,r.ts ,hay-t"o¿U-S-I<!'_
   Judge Underwood

delivered the opinion of the Court.

The appellees instituted an action of ■ ejectment in the Oldham circuit court, against theappdlant, and recovered. The appellant moved for a. new trial in January, the court took time to consider, and in April following, overruled the motion. The appellant filed a bill of exceptions to the opinion of the court overruling the motion, in which it is stated, that the evidence given on the trial, is not certified, because the court did not remember it. The bill of exceptions also complains of the proceedings of the court, at the previous term, and the refusal of the court to certify, the evidence,.because of forgetfulness on the part of - the judge. '

It is impossible for us to say, that the court erred in overruling a motion for a new trial, when the record presents for examination, nothing but the declaration, verdict and judgment. Whether the evidence did or did not authorize the verdict; we cannot tell, as it not before us.

The presumption is in favor of the legality of the proceedings of the court, and the party complaining of those proceedings, must shew to this court, the facts necessary to enable this court to detect the error, if any exists. The judge who presided on the trial of ihe cause,is not now in office, and if he were, it would require superhuman power, to bring to his receUecfiou, the evidence which he has forgotten, so that he, may yet certify it to this court. We can prescribe no remedy for such a case. To direct a new trial for the purpose of enabling the party, to spread the evidence on record, hereafter, when in, such trial, the evidence might be essentially different, would not be a revision of the proceedings already had, but would be ordering new proceedings, with a view to revise them if erroneous. Such a course would be alike novel and illegal,

Rulo of practice proposed and advised.

Denny, for appellant.

We wo,uld suggest, as a matter of practice, that it is most proper, always to take down the evidence during the term, at which a cause is tried, where the court ta]ces time, until the next term, to consider a motion for a new trial. If this is not done, and the court will not certify what the evidence was, and the party aggrieved, has not procured the bystanders to certify it as required by law, this court caunqt reverse the case, because of the possibility of error, which does not appear.

Judgment- affirmed. The appellees must recover their costs.  