The opinion
Mr. Justice Shepard dissenting :
I can not agree to conclusions which have for their basis alleged defects in a record not before us. The transcript of the record in this case, including the bill of exceptions, has in some manner disappeared from the files of this court. Whether or not a proper exception or something that operates to waive or excuse it is thereby shown, can only be determined bv an inspection of the transcript itself. The circumstances that counsel in the preparation of their abstracts and briefs do not disagree as to what the transcript shows is not enough. We are not at liberty to dispose of cases upon agreement of counsel as to what the record of the court below was. It is the record made by that court that we are at liberty to review-—-not what counsel may say it was.