McElwee v. People

Mr. Chief Justice Scott delivered the opinion of the Court: The recognizance upon which the scire facias in this case was sued out, had been abstracted or lost from the files. On leave given by the court, for that purpose, it was supplied.The fact the recognizance was temporarily off the files, did not, as insisted, deprive the court of jurisdiction. The power of the court to permit any part of the record or files to be supplied, in case of loss or destruction, is not contested, but it is claimed no notice was given, and that the evidence of the contents of the lost recognizance was not sufficient to sustain the action of the court. ‘ ■ No bill of exceptions ivas taken, and hence we can not know what evidence was heard, or ivhether notice was given to .defendants before any proceedings were had. It does not appear but evidence was heard and notice was given. A trial was had upon a plea of nul tiel record, and every pre- ' sumption will be indulged to sustain the action of the court. Its action will be presumed to be regular, and warranted by the evidence, until the contrary is made to appear. This can only be done by a bill of exceptions taken at the trial,-in accordance with the practice in this court. The point, the court erred in overruling the motion for a change of venue, can not be maintained. Such motions, as this court has repeatedly decided, do not become a part of the record unless made so by a bill of exceptions, which lias not been done in this case. ISTo error has been suggested that can be considered, for want of a bill of exceptions containing the evidence upon which the court based its action, and the judgment must be affirmed. Judgment affirmed.