1. Where an exception is taken to the refusal of a new trial, a brief of the oral and copy of the written testimony must appear in the record, or be incorporated in or exhibited to the bill of exceptions, properly authenticated. It is a copy of the brief of evidence used in the court below which should be brought to this court — not the original. Where the evidence has been brought to this court as an exhibit to the bill of exceptions, and on inspection it is apparent that the original records of the court below have been so used, instead of copies thereof, the writ of error must be dismissed.
2. Where one ground of a motion for new trial was newly discovered evidence, and affidavits were used in connection with the hearing of the motion, if the case be brought to this court, such affidavits should be included in the bill of exceptions, and do not form part of the record. A failure to include in the bill of exceptions affidavit used on the hearing of the motion, will work a dismissal of the writ of error.
Writ of error dismissed.
Since modified. See Crockett vs. McLendon (February Term, 1884.) (R.)