#### BERRY HANEY, *plaintiff in*error, *vs.*SATTERLEE CLARK and HENRY JONES, *defendants in error,*

| *Error to Dane county.*

The Supremo Court will not notice any errors in the proceedings of the court bolow, unless they arc properly presented in the record of the case.

The court will not consider any paper as a part of the record which is not made so by tho pleadings, or some opinion of the court referring to it, or by a bill of exceptions taken in tho cause; and it makes no difference that the paper is certified up by the cleric.

A motion made in the progross of a causo in the court below, and the reasons and affidavits upon which it is founded, aro no part of the record, unless made so by a bill of exceptions.

Clark and Jones brought suit against Henry before a justice of the peace of Dane county. Haney failed to appear and was de* faulted, aud the justice, upon proofs, rendered a judgment in favor of tho plaintiffs. Haney, within six days after, appealed to the Dane District Court, and there moved the court for leave to file his set-off against tho plaintiff’s demand, which was refusedby the court; and upon the trial judgment was rendered in favor of the plaintiffs.

*143Haney sued out a writ of error to reverse the judgment of the District Court, and has assigned for error, the refusal of the court to allow him to file his set-offon the motion made for that purpose. CiARK, for plaintiff in error:

The District Court ought to have allowed the defence to be made under the circumstances of the case. The statute on the subject of appeals from justices of the peace, directs that the issue in the District Court shall be the same as before the justice, unless the court shall otherwise direct. It is in the discretion of the ■court to allow a different issue, but this is a sound legal discretion to be properly exercised. The same statute gives a defendant who is defaulted before a justice the right of appeal. The whole spirit of the law, contemplates a trial on the merits; but if the party defaulted, cannot make an issue in the District Court, the right of appeal is a naked right without any possible benefit, and the provisions of the law are wholly illusory.

We contend that the court was bound to allow the amendment to be made. The principle, was so decided in Illinois under a similar statute; 1 Scammon, 137; and so also in Pennsylvania, 1 ¡Rawle, 370.

Field, for defendants in error:

There is no error in the record of this case. The motion and affidavit in support of if, are no part of the record, unless made so by a bill of exceptions, and this Court cannot notice them in any way. This is the established doctrine and practice of the courts. *Vanlandingham, vs. Fellows and others,*1 Scammon, 333; *Hinton vs. Brown,*1 Black ford,-429; *Henderson vs. Reed, id.*347; *Cole vs. Dr isle ell, id,.*18; *Goldsborough vs. May,*1 Litteil, 254; 4 Randolph, 189, In this case there was no bill of exceptions taken, and the court cannot pass upon the matters assigned as error. The sending up or certifying of papers by the clerk, or incorporating them in the transcript, can make no difference, for the clerk has no power to make records for the court.

Opinion of the Court,by

Judge Milleh:

This suit was commenced by Satterlee Clark and Henry Jones against Berry Haney, before a justice of the peace, where, in the absence of the defendant, on the return day of the writ, judgment Was rendered for the, plaintiffs; from which the defendant appealed to the District Court of Dane county; where he moved the court for leave to file his set-off to the plaintiff’s demand, which was overruled by the court, and this is the error assigned.

*144The counsel for the defendant below, and plaintiff in error, neglected to have his motion with his proposed set-off embodied in a bill of exceptions; and contented himself with coming here with a mere certified transcript of the records of the District Court. — ■ The counsel of the defendants in error refused to argue or consider the error assigned, for the reason that the cause is not properly in this court, as the motion of the party is not a part of the reebrd, but can only he made so by a bill of exceptions, stating the motion, and the nature of the off-set proposed.

The question is thus presented: is *ibis motion*a pari of *the■*record which this court will examine as such? In cases at common law, the course of the Supreme Court of the United States is not to consider any paper part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. This rule is common to all the courts exorcising appellate jurisdiction according to the course of the common law. The preliminary question is, whether the matter exists on the record?— *Lessee of Fisher vs. Cockwill, 5*Peters, 248. The appellate court cannot-know what evidence was given to the jury, unlessit is Spread on the record in proper legal manner; *Gratz vs. Gratz,*4 Rawle, 411. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make that document, or that 'evidence, a part of the record, so as to bring it to the cognizance of the appellate court. Upon the same principle, the court of appeals of Kentucky decided, in the case of *Ashley vs. Sharp,*1 Littell, 166, that where the grounds assigned in *the*record, are the exclusion of evidence, or of title papers on the former trial, the bill of exceptions ought to exhibit the evidence or title papers excluded. Upon the samo principle, it was decided by the Supremo Court of Illinois, Van*landingham vs. Fellows,*1 Scam. 233, that the reasons filed by a party as the foundation for a motion in the Circuit Court, do not thereby become a part of the record. To make them a part of the record, they must be embodied in a bill of exceptions. And because they were not so made a part of the record, the court refused to take any notice of them. In Indiana, evidencej whether written or parol, can only be made part of record, by oyer, bill of exceptions, demurrer to evidence, especial verdict, or consent of parties; *Cole vs. Driskell,*1 Black, 16. The same court decided in the case of *Shields and Wife vs. Cunningham,*I Black, *14536, that a *capias ad respondendum,*is not part of the record, unless made in some legitimate method; and the circumstance of its being certified up by tiie clerk, can add nothing to its validity. In the case under consideration, a copy of the off-set offered to be filed in the District Court, is not even certified up by the clerk.— There is no error apparent on the record, and the judgment of the District Conrt must therefore be affirmed. The error complained of is not properly presented, and for this reason the court will not notice it. *The People vs. Dalton,*15 Wendell, 581.

CiARK, for pl’tff in error.

Fseld, for def’is in error;