
    June Term, 1860.
    Webster vs. Modlin, and another.
    • A judgment will not be reversed on account of the refusal of the court to grant a new trial, unless the refusal was excepted to.
    Whore the record does not show that such exception was taken, the affidavit of counsel will not be received to supply the defect, especially while the judge before whom the trial was had, is living.
    EEEOE to the Circuit Court for Oalumet County.
    This action was tried in November, 1854, and the defendants had a verdict. There was a motion for a new trial, which was denied by the court, and judgment entered against the plaintiff for costs. The record does not show that any exception was taken to the overruling of the motion for a new trial. The judge before whom the cause was tried having gone out of office before auy bill of exceptions was settled, bis affidavit stating what the evidence was upon the trial, was brought to this court in lien of a bill of exceptions, but tbe affidavit doés not show that any exception was taken to the order of the court denying the motion for a new trial. The counsel for the plaintiff in error produced his own affidavit, to supply that defect.
    
      B. P. Baton, for plaintiff in error.
    
      E. 8. Bragg, for defendants in error.
    July 30.
   By the Court,

Paine, J.

In this case the plaintiff in error seeks to use the affidavit of the judge before whom the cause was tried, in tbe place of a bill of exceptions, the judge having gone out of office before any bill of exceptions was set-tied, and bolding that he was not authorized to sign one after-wards. Without determining whether this is proper tice or not, we think the judgment must be affirmed; for the only error relied on is the refusal to grant a new trial, and the judge’s affidavit does not show that any exception was taken.

The counsel for the plaintiff in error seeks to supply this defect by his own affidavit, showing that he did except. But certainly we shall not adopt the practice of trying the record upon affidavits of parties or counsel, while the judge before whom the trial was had, is living. If the affidavit of the judge can be received in'place of a bill of exceptions at all, it must show that the necessary exceptions were taken.

The judgment is affirmed, with costs.  