delivered the opinion of the court.
Upon preliminary motions based upon affidavit and suggestion, it is not usual or generally proper for the court to enter into any discussion of questions, which the return discloses are there to be discussed and decided upon the hearing. This is purely and essentially a preliminary motion of this character. The respondent here alleges under oath that the papers sought to be added to the return now on1 file were, at the time of trial, and still remain on file in the-Circuit Court. He also alleges that these papers were to a great extent the basis of the action of the Circuit Court in reaching the conclusion it did, and .the return here shows that they were considered. Admitting, for the purpose of disposing of this 'motion, that the papers here sought to be brought up are such that could not, accprding to the rules which should have governed the action of the court, have been considered in its action, still, if it is apparent that such papers were considered, then it is evident that we must have them in the record in order to a full and fair review of the action of the Circuit Court.
The error here assigned is the consideration of matters of evidence upon a motion in arrest of judgment, and in the determination of this question it is proper that such evi-ience should be in the return made to this court.
The certiorari is awarded returnable on Friday morning next.