
    
      MITCHEL vs. JEWEL.
    
    East’n District.
    
      December, 1820.
    If the record shows that a number of witnesses were sworn and their depositions taken down, if that of one of them does not appear n the record, the certificate that the whole testimony is contained on the record, will induce a presumption that this witness was not examined, which will be rebuted by the appellee’s affidavit that he was.
    Appeal from the court of the fourth district.
    
      Livingston, for the defendant and appellee,
    moved to have the appeal dismissed, because the whole testimony was not brought up. He showed that one Filhiol appeared by the record to have been sworn, and yet his deposition was not to be found among those of the other witnesses, which had been takeu down by the clerk, in order that they might serve as a statement of facts.
   The counsel observed, that as both the clerk and the district judge had certified that the record contained the whole testimony, the presumption must be that Filhiol, though sworn, was not examined.

On this, Turner, for the plaintiff and appellant,

moved for and obtained a writ of certiorari.

Thereupon, the counsel introduced the affidavit of the defendant, showing that Filhiol was examined.  