
    David Whiteside vs. R. P. Button.
    1. Practice and Pleading. Surplusage. A suit -was brought in the name of E. P. Button, agent of the “Lynchburg Virginian:” Held, on objection, that the words, “agent of the Lynchburg Virginian,” are merely descriptive of the person who sues, and may be regarded as surplusage.
    2. Evidence. Conflict of. Bill of exceptions. Presumption. In a cause where there is a conflict of testimony, if the bill of exceptions does not show that there were only two witnesses examined, or that it contains “all the evidence in the cause,” it will be presumed that the evidence, in the trial below, warranted the verdict.
    PROM GRAINGER.
    There was a verdict and judgment, in this case, against Whiteside, at the April Term, 1860, of the Circuit Court, Judge Thomas W. Turley, presiding. White-side appealed.
    
      Shields & Champion, for Whiteside.
    BARTON & McEablin, for Button.
   Hawkins, J.,

delivered the opinion of the Court.

This is a suit brought before a Justice of the Peace for Grainger County, on the 9th of January, 1860, by the defendant in error, “agent for the ‘Lynchburg Virginian/ ” upon an account against the plaintiff in error. A trial was had before a Justice of the Peace, which resulted in a judgment in favor of the plaintiff, from which defendant appealed to the Circuit Court of Grainger County, in which the cause was tried, on the 24th of April, 1861, which resulted in a verdict and judgment for the plaintiff. Defendant moved for a new trial, which was overruled by the Circuit Judge, and the defendant has brought the case to this Court by an appeal.

But two questions are presented for-our consideration:

1. It is insisted, the plaintiff below is described in the warrant, as “agent for the ‘Lynchburg Virginian/ ” and there is no proof of his agency, or that the contract was made with him, or that he had any interest in the recovery, and that the party who has the legal interest must sue. To the objections we answer: the words “agentfor the ‘Lynchburg Virginian/” are merely descriptive of the person who sues, and may be regarded as surplusage, and the record shows that the “Lynchburg Virginian,” was the plaintiff’s paper.

2. It is insisted, in argument, that, as there were but two witnesses examined, and their testimony is conflicting, there is, therefore, no evidence to sustain the verdict.

Without determining the precise question raised in the argument, it is sufficient to say, the record does not raise the question. The bill of exceptions does not show that these two were the only witnesses in the case, or that it contains “all the evidence in the case;” and in the absence of such a statement in the record, it will be presumed the evidence warranted the verdict.

The Circuit Judge who tried the cause, having overruled the motion for a new trial, and there being no error in the record, the judgment will be affirmed.  