
    Arthur Spaulding, (in error,) versus Ira S. Rogers.
    When, for error, a judgment is sought to be reversed, the error must affirmatively appear ; for the judgment will not he held to be erroneous when, from aught that appears, it may have been legally rendered.
    Exceptions from the ruling, pro forma, of Tenney, C. 4 , J., presiding at Jxisi JPrms. *
    Writ op error to reverse the judgment allowing the defendant costs in an action in which he was summoned as trustee of Calvin M. Sawyer, brought by the present plaintiff.
    The errors assigned are as follows; viz.: (1) The judgment rendered for said Rogers, was, that he be discharged as trustee, and recover costs of said Spaulding, taxed at $19,86, whereas no costs should have been taxed and allowed to said Rogers, because he did not come into Court and submit himself to examination, at the first term of the pendency of said action.
    (2) Said action was entered at the March term of said Court, A. D. 1860, and continued from term to térm to the September term, A. D. 1861, without any appearance for said Rogers, when he appeared and submitted himself to examination on oath and was discharged; and costs were taken for him and judgment rendered for the same in his favor, and execution issued on said judgment; whereas no costs should have been taxed or allowed for said Rogers.
    The record of the judgment made part of the case; and the proceedings therein recorded, so far as they bear upon the question in issue, will appear from the opinion of the Court.
    
      Webster, for the plaintiff in error.
    
      J. 8. Abbott, for the defendant.
   The opinion of the Court was drawn up by

.Appleton, C. J.

The record of the judgment sought to be reversed, incorporates the disclosure presented to the Court for its adjudication.

From the date of the disclosure, as thus incorporated, it appears that the trustee, at the return term, signed and swore to a disclosure in which he denied having any goods, effects or credits of the principal debtor in his hands, at the time of the service of 'the writ on him, and submitted himself to examination. At the same, or a subsequent term, he was examined by the counsel for the plaintiff, but the disclosure was not presented to the Court, to determine whether trustee or not, until the term when judgment was rendered.

To justify the reversal of a judgment for error, it should distinctly and unequivocally appear that an error has been committed. It should not be a matter of doubt or uncertainty. Notwithstanding the record shows the disclosure was not adjudicated on at the first term, it does not show that the trustee did not then appear and submit himself to examination. On the contrary, it does appear by the disclosure itself, which being made part of the record-must be deemed a's true,- that the trustee did appear, denied his liability upon oath, and submitted to further examination as the law requires. In the usual course of practice, the disclosure would be placed on file the term at which it was made. Nothing indicates that such was not the case here. The want of authority to allow costs, should be affirmatively shown. This is not done, and we are not to presume the judgment erroneous, when, from aught that appears, it may have been legally rendered.

Exceptions sustained. Judgment affirmed.

Cutting, Davis, Walton and Barrows, JJ., concurred.  