Assumpsit on an agreement between Hussey and McGilpin, that the former should deliver to the latter, at Hussey's farm, one hundred head of steers, weighing not less than one thousand two hundred pounds each on foot, at 1 dollar and 75 cents per hundred pounds. McGilpin advanced 50 dollars to Hussey on the contract. Plea, the general issue, and, as to the 50 dollars, a tender. The cause was submitted to a jury; verdict and judgment for the plaintiff below. A motion for a new trial was overruled ; but the bill of exceptions does not profess to set out all the evidence.

Several objections are urged by counsel for Hussey. It is said the motion to suppress depositions was erroneously overruled. The ground of objection relied upon in the Circuit Court not being shown by the record, we must *594presume that there was none pointed out, and so, that the ruling of the Circuit Court was correct. Camden v. Doremus, 3 How. R. 515.—Parker v. The State, 8 Blackf. 292. The trial was prior to the statute of 1850-51.

The instructions given are complained of. But where the record does not set out the evidence, and the instructions given would, under any presumed state of facts, be correct, the judgment will not be reversed. Collis v. Bowen, 8 Blackf. 262.

The judgment is affirmed with 5 per cent, damages and costs.