
    KIRKMAN ET AL. vs. POLLITT & THORN.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The appeal dismissed, for want of all the evidence to try the case on its merits.
    The clerk’s certificate to the record, states that it contains all the evidence “ except the document withdrawn by agreement.” This was a record of the City Court, which both parties agreed might be withdrawn without diminution of the record, and each to have such papers copied from it as they might want to use. The suit was by attachment, and judgment obtained against the defendant, Pollitt, to be satisfied out of funds attached in the hands of Thorn, and he alone appealed.
    Eastern Dist.
    
      May, 1840.
    
      Elvnjn, for the plaintiffs.
    
      Potts, for the defendants,
    insisted that the court could not compel the parties to use testimony they did not want, and that the record contained all that was necessary to the decision of the case.
   Bullard, J.,

delivered the opinion of the court.

The garnishee is appellant from a judgment against him, but he has not put it in our power to examine the case upon its merits, all the evidence given below not being in the transcript.

The appeal is, therefore, dismissed, with costs.  