delivered the opinion of the court. This is a case in which the evidence comes up with the record, under an act of the legislature, approved on the day of 18. It appears by affidavits, taken by the appellee, that the whole evidence did not come up, but that the testimony of one Anderson, who was examined in the district court, is wanting.

The circumstance, not being denied by the appellant, it is ordered that a mandate, in the nature of a certiorari, be directed to the district *669court, requiring that the testimony of every witness sworn on the trial of the case, taken down in writing, be certified and transmitted to this court, and particularly that of said Anderson, returnable at August term next.