Ditto v. Barton

delivered the opinion of the court. This is an action on two promissory notes: there was judgment against the dant in the court of the first instance, and he has appealed. 11

The two points made by him in this court, cirC l mi /» i 1. That one of the notes was stated m the petition to be made on the 5th of April, 1823; and that which was offered in evidence was on the fifth of April, 1822.

2. Thai one of the notes recovered on, was endorsed over, and no evidence was given of a retransfer.

The second objection cannot be noticed, for none of the evidence given on the trial comes up. The record is not certified in such a way as will enable us to look into the merits. The clerk states that the foregoing ten pages contain a true and complete transcript of all the proceedings had, and of all the documents on file in the suit. This may be true, and yet the record not contain the evidence given on the trial, for if it was not taken down, it could not *128be on file; and the fact of its not being redu- * D ced to writing made no part of the proceedings. It is clear from other parts of the record, that evidence was given, and it is also to be presumed from the verdict of the jury. The code of practice requires the clerk to certify, that the record contains the evidence adduced. Code of Practice, 586,602, 603,896.

The first objection however, is properly brought before us by a bill of exceptions, but we think it untenable. The note on which suit was brought, was annexed to, and made by express declaration, apart of the petition. So that there was not, nor could there be any variance between the allegation, and the proof The erroneous description given by the plain-tiffin copying the note, was corrected by the note itself There could not have been any surprise, and the res judicata may be well pleaded to another action on this allegation. When both these objects are attained by the proceedings, the defendant can have no just cause of complaint.

We do not think this is a case in which damages should be allowed for a frivolous ap*-peal, and it is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.