
    Schiffer et als. v. Tarver et al.
    
    
      Bill in Equity to Foreclose Mortgage, &c..
    
    
      Evidence ; what not considei-ed. — On appeal from a decree in chancery, this court will disregard depositions contained in the record, unless they are set down in the note of testimony, as required by the 74th rule of chancery practice.
    Appeal from Chancery Court of Barbour.
    Heard before Hon. B. B. McCraw.
    The point decided is sufficiently stated in the opinion.
    Bueokd & Dent, for appellant.
    Seals & Wood, contra.
    
   MANNING, J.

Appellants were complainants below, and the cause, according to the recital in the decree, was submitted to the chancellor for his decision on “ the pleadings and proof,” on consideration whereof the bill was dismissed.

There are several depositions in the record that were taken in the cause, but it does not appear that they were submitted to the chancellor as evidence. There is no note of evidence in the record, and the counsel for appellee, insist that according to the 74th of “ The Rules of Chancery Practice,” any testimony not offered as it directs, “ and noted by the register on the minutes, must not be considered as any part of the record, nor be considered by the chancellor.” — Revised Code, p. 833.

This is the express provision of the rule referred to, and as averments necessary to support the equity of the bill are denied by the answers under oath, the decree of the chan- • cellor must be affirmed.

The examination I have made of the depositions in the record inclines me to the opinion that they would have conrpelled us'to the same conclusion if they had been considered as evidence in the cause.  