#### Greening vs. Bishop.

Bill op Exceptions. *Presumption wlien it is not certified to contain all the evidence.*

In an action for damages alleged to have accrued from defendant’s negligence, a nonsuit was refused at the close of plaintiff’s evidence, hut granted after defendant’s evidence was in. The hill of exceptions not being certified to contain all the evidence: *Held,*that the nonsuit must be *presumed*to have been justified by the evidence.

APPEAL from the Circuit Court for *Fond du Lao*County.

This was an action for damages accruing to the plaintiff from the running away of his horses and the breaking of the wagon to which they were attached; the complaint alleging that the horses were frightened by a hog lying in a public highway on which plaintiff was then driving, and that the hog belonged to the defendant and. was then and there unlawfully at large through his negligence. The answer was a general denial; but defendant admitted at the tidal that the hog in question belonged to him, and “ that the damage done to plaintiff was at least $44.95.” The .testimony for the plaintiff found in the bill of exceptions tends to show that the accident was caused by the presence of the hog in the highway, and that the animal had been at large nearly twenty-four hours. . A nonsuit having been refused at the close of plaintiff’s evidence, defendant introduced evidence tending to show that the hog escaped from his premises only a few hours before the accident, and without any negligence on his part. He then moved for a nonsuit upon the grounds, that the evidence did not disclose any cause of action against him, did not show him guilty of any neglect, and did not show the hog in question to be an animal likely to frighten horses of ordinary gentleness. The court granted a judgment of nonsuit, and the plaintiff appealed.

*553Tbe bill of exceptions is not certified to contain all tbe evidence.

Tbe canse was submitted upon tbe brief of *E. T.*Eelcmy, for tbe appellant, and tbat of *EMredge, Thorpe & Ev/rley*for tbe respondent. Tbe questions discussed in these briefs are not passed upon by tbe court.

Pee CueiaM.

It appears that when tbe plaintiff rested, tbe defendant moved for a nonsuit, which motion was denied. "When tbe defendant closed tbe case on bis side, be renewed tbe motion, and it was granted. It is claimed tbat this ruling was erroneous, and tbat there was sufficient evidence to carry tbe case to tbe jury upon tbe question whether or not tbe defendant was guilty of negligence in suffering tbe animal to be at large in tbe street.

There is no certificate tbat tbe bill of exceptions contains all tbe testimony given on tbe trial. Consequently we are unable to say tbat tbe nonsuit was wrong. In order to reverse tbe judgment, it must appear tbat tbe circuit court erred in granting tbe nonsuit; in other words, we must have some means of knowing tbat we have all the evidence before us upon which tbe court acted. Without a certificate tbat tbe bill of exceptions contains all tbe testimony, we .must presume tbat tbe nonsuit was right and fully justified by tbe evidence which was before the court when tbe motion was granted.

The judgment of tbe circuit court is therefore affirmed.