delivered the opinion of the courL The judge a quo certifies that the record contains all the matters on which the suit was heard before him.

Errors have been assigned according to the practice of this court, as apparent on the face of tha record: That there was no proof pro~ pro~ *476duced at the trial to establish the existence of P. Dabreuil, the plaintiff and appellee; 2 That all the evidence introduced was illegal, having been taken ex parts and introduced on the trial, without the consent of the defendant and appellant. Other errors were assigned, which we deem it unnecessary to notice, as the appellant must succeed on that record.

It is clear from a view of the record, that no legal evidence was offend or heard on the issue between the parties, as it seems to have been all taken ex parte by the plaintiff, and ought not to have been received in the court below.

It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed; and this court proceeding to give such a judgment as, in their opinion, ought to have been given in the court of probates, it is ordered, adjudged and decreed, that the petition be dismissed with costs of suit in both courts: without any prejudice to the defendant in any prosecution which she may hereafter institute to have the mortgage mentioned in the answer, an~ untied and cancelled.