¶1The brief of the plaintiff in error, in this case, presents the same point decided in the case of Pennell & Lovett v. Casey & Reese, No. 857. But it was not taken in the Court below. At the close of the record, immediately preceding the Clerk’s authentication of the record, an exception appears in the transcript, but it does not show when filed, nor whether it was presented to the Court. It ought not to have *651been regarded by the Clerk as a part of the record ; as it appears on the transcript, it is most likely it was placed among the papers of the file, after judgment. The case above cited was affirmed without giving the damages, because the exception was fairly presented to the Court below. This is affirmed with ten per cent, damages for delay.
¶2Affirmed with damages.