
    FLEMING vs. USSERY.
    [real action in nature ojt ejectment.]
    1. Presumption in favor of affirmative charge. — When the "bill of exceptions does not purport to sot out all the evidence, the appellate court will presume that a general affirmative charge was justified by the evidence.
    Appeal from the Circuit Court of Eayette.
    Tried before the Hon. S. L>. Hale.
    
      This action was brought by Robert N. Fleming against Robert Ussery, Miles Gr. Riggs, and Ransom IJssery, to recover the possession of a tract of land. The bill of exceptions does not purport to set out all the evidence. The court charged the jury, “that if they believed the evidence, they must find for the defendant.” This charge, to which an exception was reserved, is the only matter now assigned as error.
    A. B. Clitherall, for appellant.
    Vm. S. EARNEST, contra.
    
   STONE, J.

In the recent case of Doe d. School Commissioners v. Gi-odwin, at the present term, we laid down a rule that is fatal to the appellant in this case. In that case, as in this, the bill of exceptions failed to inform us that it contained all the evidence. In that case, as in this, the court charged the jury, that if they believed the evidence, they must find for the defendant. Ye there decided, that we would presume the evidence justified the charge, unless the contrary was affirmatively shown; and we affirmed the case on this principle, although the bill of exceptions did not contain enough to overturn the prima-facie case made by the plaintiff.

There is no error in the record, and the judgment of the circuit court is affirmed.  