
    William Penny, Appellant, vs. N. H. Holmes, Appellee.
    Where the judgment of the Circuit Court is based upon a consideration of all of the testimony adduced, and none of the testimony is properly brought before this Court, the judgment must be affirmed.
    This is an appeal from a judgment of the Circuit Court in Escambia County, rendered in an action of replevin instituted by Penny against Holmes. There was a judgment for defendant, from which the plaintiff appealed. The error assigned in this case required a consideration of the testimony in order to its determination, and there was no bill of exceptions in the record. The case is decided solely upon this point.
    
      O. W. Jones for Appellant.
    
      Mallory dk Mamwell for Appellee.
   WESTCOTT, J.,

delivered the opinion of the court.

This is an appeal from a judgment in an action of replevin instituted in Escambia county.

The case both as to, the law and the facts was submitted to the court, and after due consideration of the same, judgment was rendered for the defendant, (the appellee here,) in the court below.

The evidence submitted to the court is not before us. There is no bill of exceptions in the record. We have nothing but the judgment of the court before us, and we cannot presume that it is wrong.

We deem it unnecessary to discuss the effect of the constitutional requirement directing that the evidence shall be reduced to writing by the clerk under the control of the court and filed with the papers in the case, as this matter has been decided at this term after mature consideration, our conclusion being that this section does not dispense with the necessity of a bill of exceptions.

The judgment is affirmed.  