
    Gale Def’t. and Appellant v. Pearson Pl’ff. and Appellee.
    To enable the Sup. Court to determine whether or not the circuit court has erred in its judgment, it is necessary to preserve the evidence and proceedings in a bill of exceptions.
    Appeal from the circuit court of Audrain county.
    
      P. Williams for Appellant.
    
    1st. From the evidence the verdict is wrong. 3 vol. Mo. Rep. page 464, Lightner vs. Mann.
    2nd. The court misinstructed the jury.
    
      J. R. Abernathy for Appellee.
    
    1st. The jury was warranted in finding a verdict for plaintiff below on the evidence there given.
    2nd. The court did right to íefuse a new trial, see 3rd vol. Mo. rep. 464, Lightner vs Mann. 1 vol. do. 14 Mc-Night vs. Brady and Wells. 4 vol. do. 295, Oldham vs Henderson. Hardwich vs Holmes decided at Oct. term of this court 1839, at Palmyra.
   Opinion of the Court delivered by

Tompkins Ridge.

Pearson, sued Gale before a justice of the peace, where he obtained judgment; Gale appealed from the justice to the circuit court of Audrain county, where he again had a judgment rendered in his favor, and Gale now appeals to this court. The counsel, of Gale complains, in his brief, of certain acts of the circuit court done to his injury, as that the court misinstructed the jury,- and refused to allow him to have a new trial. There is no bill of exceptions in the record. The clerk has written out on the record, something that he calls instructions given by the court, and on a small piece of paper presented to this court, to which the name of one of the circuit judges of the State of Missouri is subscribed, we find these words: “To which instructions, considered together, the deft excepted, the jury found for pl’tff.— The deft, then filed his motion for a new trial in the cause, v/^c^ inspections given by the plaintiff, see copied itnmedi-ately below; which motion was overruled by the court; to which opinion of the court the deft, excepts and [ rays that Ms bill of exceptions &c.” the slip of paper on which is the ab°ve wiitingis separate and and detached from the record of the case. The couc sel for the appellant, if this paper con-taine<l any Part of the record of the cause, ought to have al-ledged a dimmunition of the record, and to have applied to this court, for a writ commanding the circuit court to send up the record, there being no bill of exceptions before the court to show any error that the circuit may have comrmt-ted. Its judgment is affirmed. J 0

T M the Sup Court whether^or110 ihe circuit rod in 'its °r" judgment, it io ^preserve tho evidence and \ngema bill of exceptions.  