(after stating the facts.) The ap-ants ’ motion in arrest of judgment was based upon the that the verdict of the jury, which is set forth in the going statement, found “the issues at law” in favor of defendants. No exception was taken when the verdict rendered, which was on March 14th, as to its form; and ¡court’s attention was not called to it until the motion in ■St of judgment was heard, March 18th. The trial judge |ched to the. bill of exceptions in this case an explanation e effect that the court “submitted to the jury a single simple issue of fact, not an issue of law; and it treated ¡words ‘at law, ’ in the verdict, as surplusage, involving a ake in wording, apparent on the face of the proceedings, if error, not any error that could have in any wise pre_ ed the plaintiffs.’’ The counsel for appellants in this insist that their clients are not in the attitude of persons sit silently by and permit the court to commit error, *536but, on the contrary, they contend that, by proper motic and in apt time, they did all in their power to prevent tl alleged hrror, and that the judgment should therefore 1 reversed. The record fails to disclose any objection to tb form of verdict until four days after it had been rendere If, at the time the verdict was rendered, counsel had call the attention of the court to the words ‘ ‘issues at law, ’ ’ t proper correction would doubtless have been promptly m a by striking out the words “at law,” and asking the ju whether the verdict as thus amended was their verdi This not having been done, the trial court, having, as t judge certifies in the bill of exceptions, submitted to the ju a single and simple issue of fact, not an issue of law, migl without prejudice to the plaintiffs, treat the words “at la as surplusage, and enter a judgment according to the verd viewed in this light. No error prejudicial to appellants ¶ committed by the trial court in pursuing this course.
Verdict Surplusage.The motion for a new trial alleged but three grounl only one of which is insisted upon in this court, viz. tl ‘ ‘the court erred in instructing the jury that the burden proof was upon the plaintiffs on all the issues in the casj We have carefully examined the record in this case, an<J fails to show that any instructions whatever were giver the jury in the case. The first intimation as to the instr tions is found in the motion for a new trial, and in the mot there is nothing in the shape of instructions, except words just quoted above. The rule is that he who afibl any fact must prove it. “Affirmantis est probatio. ” Th| is nothing in the record which shows that the trial court regarded this rule. It is too late to raise such an object] as this, for the first time, in the motion for a new trial, cannot assume, on the mere statement of counsel, in] absence of any record to support it, that the trial court structed the jury, in effect, that the burden of proof waa *537ie plaintiffs to establish new matter alleged by the defend - lts in their answer; yet this is implied by appellants’ mo-in; otherwise, no error was committed. If counsel desire .is court to pass upon instructions, the record must set rth in hsec verba the instructions given and refused. If is is not done, no exceptions will be entertained. There no reversible error in the record, and the judgment is erefore affirmed.
Record must contain instruction complained oí Clayton and Thomas, JJ., concur. Townsend, J., t being present, did not participate.