*287On Petition for Rehearing.
Hackney, J.In her petition for a rehearing, the appellee earnestly insists that the evidence disclosed the establishment, prior to September 7, 1877, of a grade for the street in question, both by the action of the former town, adopted impliedly by chartering as a city under the statute, and as proven by the recitals of the ordinance of September 7, 1877. As held in the original opinion, the acceptance of a city charter does not impliedly work an adoption, by the city, of street grades established by the former town, in the sense that, under the statute creating a liability, the city may not establish a grade. City of Wabash v. Alber, 88 Ind. 428.
The recitals in the ordinance of September 7, 1877, not only do not establish, or purport to establish, a grade, but they are far short of the evidence required to show that the city had taken, by corporate action, the steps necessary to establish such alleged prior grade. Mattingly v. City of Plymouth, 100 Ind. 545.
If, prior to September 7, 1877, as the trial court found, the city had established a grade for the street in question, that fact should have been proven by showing the authoritative acts and proceedings of the common council in adopting the former town'grade, or in designating a new grade. Again it is insisted that the evidence is not in the record, first, because the bill of exceptions contains the original long hand manuscript of the evidence which, it is further claiméd, was not filed; and, second, because the only certificate that the bill contains all of the evidence is that of the stenographer. As to the first objection, we will say that the record discloses that the bill of exceptions was filed within the time allowed, and the clerk certifies, not that the record contains the original, but that it contains copies of all pro*288ceedings, etc: It is, perhaps, true, as counsel suggest, that to bring the original long hand manuscript into the record, instead of by copy of the bill of exceptions, it must appear to have been filed. We must accept, however, the clerk’s certificate as conclusive that the bill of exceptions is in the transcript, by copying the original, and we are not permitted to take the statements of counsel, that the transcript contains the original, and not a copy. As to the second objection to the bill, counsel are mistaken. It clearly appears in the certificate of the judge, that the bill contains all of the evidence given in the cause.
Filed October 16, 1895.The petition for a rehearing is overruled.