In this case, a question is raised as to whether the defendant appeared in the Court below. We think it sufficiently appears from the whole record that he appeared.

Second. It is said that the Court erred in sustaining the demurrer to the answer of defendant. We cannot pass upon this question, for the reason that, although the record states that a bill of exceptions was filed during the progress of the trial, yet it was not, as appears, filed until *480during the vacation of said Court. It is not shown that any time beyond the term was given within which to file said bill; nor does said exception otherwise appear in the record.

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