Anthony sued Irwin before a justice of the peace, and had judgment for 37 dollars and 59 cents. Irwin appealed to the Circuit Court, where there was a second jury trial, and judgment on the verdict for Anthony for 69 dollars and 75 cents. Motion for a new trial overruled; but the evidence is not in the record. .

There is only one exception taken by Irwin to the ruling of the Court. It appears that at the April term, 1855, the appeal was dismissed at Irwin’s instance; but reinstated at the same term on affidavit, and the cause continued. At the January term, 1856, the parties appeared by counsel and went to trial. The verdict was rendered on the 11th of January, 1856, and on the 15th of the same month Irwin tendered his bill of exceptions to the opinion of the Court given in April, 1855, reinstating the cause on the docket.

Held, that, the evidence not being in the record, the opinion of the Court in overruling the motion for a new trial cannot be reviewed. Dougherty v. The State, 5 Ind. R. 453 (1).

Held, further, that even if the evidence had been in the record, yet as the opinion of the Court in that behalf was not excepted to there was no question raised in the record. Zehnor v. Beard, at the present term (2).

Held, also, that the bill of exceptions taken at the January term, 1856, to the ruling of the Court in April, 1855, no exception being taken at the time the decision *471was made, was too late, and. could not be regarded as any part of the record.

Judgment affirmed with 5 per cent, damages and ■costs.