#### Herman Neitz, Appellee, v. William Hilker *et al.,*Appellants.

1. Practice in Supreme Court: evidence: bill of exceptions. Where an abstract of the record in a cause shows affirmatively that the evidence has not been preserved by a bill of exceptions, and no certificate of the trial judge to the evidence has been filed, but only a certificate of the clerk of the district court that the abstract contains a complete statement of the pleadings and evidence, the supreme court will not review alleged errors of the district court in the admission of evidence.

2. -: -: -. Neither will the court consider under such circumstances the applicability of the court’s instructions to the evidence.

*460
      *Appeal from Hardin District Gowrt.*— Hon. John L. Stevens, Judge.

Monday, February 1, 1892.

Action at law to recover damages for an alleged malicious prosecution. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants *appeal.*

Affirmed.

*Hyatt*& Hyatt, for appellants.

(7. *JE. Albrooh,*for appellee.

Rothrock, J.

I.. The plaintiff was arrested upon an information from a justice of the peace, charging 1. Practice in supreme court: evidence: bill of exceptions. Mm with larceny, and, upon a preliminary examination before the justice, the prosecution was dismissed and the plaintiff discharged. It is not disputed that the arrest was procured by the defendant William Hilker. The participation of Ernest Hilker in commencing the prosecution was disputed. It appears from the abstract of the appellants that objections were taken to the rulings of the court in refusing to allow the defendants to introduce in evidence facts which the defendants learned from third parties in relation to the acts, declarations and conduct of the plaintiff, which would operate upon the minds of the defendants on the question of probable cause for believing the plaintiff guilty of the criminal charge for which he was arrested. The evidence, as set out in the abstract, shows that the defendants were permitted to show all the information upon which they acted in the prosecution of the plaintiff. This fully appears in the abstract wherever the evidence is abstracted. Certain questions to witnesses are set out, and objections thereto were sustained' which at a casual examination might appear *461erroneous. But the whole scope of the evidence shows that the defendants were permitted to prove every fact which operated on their minds in procuring the arrest of the defendants.

But there is another ground upon which it would be improper for this court to pass upon the rulings under consideration. It does not appear from the appellants’ abstract that the evidence was preserved by a bill of exceptions. On the contrary, it appears ■ from the abstract that the evidence is certified to .this court by. the clerk of the district court. The only authentication in any manner referred to in the abstract is in these words: “The foregoing is a full and complete statement of all the pleadings, evidence given, offered and refused, instructions asked. ai^d refused, verdict of the jury, motion for new trial, rulings and other record entries — all of which is duly certified to by the clerk of said court.” It is not necessary to set out a bill of exceptions in full in an abstract, and it may be that, when no objection is made by the appellee, even the failure to state in an abstract that the evidence was preserved by a bill of exceptions ought not to prejudice an appeal. But in this case the abstract shows affirmatively that it was not preserved by a bill of exceptions or by a certificate of the judge, but by a certificate of the clerk.

II. It is claimed the court erred in the charge to the jury. We do not discover that the instructions are 2. -: -: -. not correct as abstract propositions of law. Whether applicable to the evidence we cannot determine, as no part of the evidence is before this court in a proper abstract. Tbe judgment of the district court is aeeikmed. • •