¶1—The appellant has assigned for error overruling his motion for new- trial. The appellee insists that the bill of exceptions is not properly in the record.
¶2The cause was tried, and the motion for a new trial made and overruled, at the May term, 1871. Time was given the appellant until the second day of the next term of the court to prepare and file his bill of exceptions. That term commenced on the first Monday, the 4th day, of September. The bill of exceptions was filed on the 12th of September.
¶3The bill of exceptions not having been filed within the time fixed by the court, although copied by the clerk, is hot properly in the record. There is no question before us.
¶4The judgment of said court of common pleas is affirmed, with costs and five per cent, damages.