#### George Frazier et al. v. William Laughlin et al. John Doe, ex. dem. Wiley et al. v. John Bean et al.

Motion to file amended Bill of Exceptions.

A bill of exceptions was, on motion, allowed to be amended by the Judge who tried the cause, by affixing his seal thereto, although the Judge was not in office at the'time of such amendment.

In the former case, the bill of exceptions was signed by the Hon. Stephen A. Douglass, and in the latter by the Hon. Peter Lott. It has been the practice with counsel, in drawing *186up bills of exceptions, to add the usual seal or scrawl at the close thereof, before presenting the same to the Court for approval; and the Court below, in these cases, did not notice that the seal was omitted. When the causes came up for hearing in this Court, both of the Judges, who presided at the trial, were out of office. Motions were therefore made, with argument, to permit the Ex-Judges to annex their seals to their respective signatures in the said bills, though one of the causes had been argued in chief.

. J. Jl. McDougall, for Frazier et al.; Jl. Williams <$■ Jl. Johnston, for Wiley et al.

The only question is, whether a Judge, out of office, can seal a bill of exceptions. The Court is referred to the following authorities in support of the motion. Gibson v. Bailey, 9 New Hamp. 169, 176; Shepherd v. White, and Campbell v Shult, 3 Cowen, 33; Lyons v. Rood, 11 Verm. 165.

O. H. Browning & N. Bushnell, for the defendants.

The only provision in our statutes in relation to bills of exceptions, is to be found in the Practice Act, § 19, R. L. 491; Gale’s Stat. 553.

This Court has decided that the seal of the bill of exceptions is essential. Jones v. Sprague, 2 Scam. 55. It was also so held in Davis v. Wilson, 2 Harris & Johns. 445.

The Judge who decided the case must sign and seal the bill; and this he must do while in office, and under the sanction of his official oath; and for the exercise of which the law will hold him responsible as such officer. His successor .cannot do it.

The bill must be signed as a Court-=-nat by the members thereof severally and out of Court. Clark v. Dutcher, 19 Johns. 247.

The bill of exceptions is a creature of the statute; and it must be complied with in form and substance, Stewart v. Hawley, 22 Wend. 564.

The Judge whp tries the cause must seal and sign the bill, or it is a nullity, if don© by his successor, or any other Judge. *187 Law v. Jackson, 8 Cowen, 747; Consaul v. Lidell, 7 Missouri, 251.

A clerk out of office cannot amend a record made by him while clerk. Hartwell v. Littleton, 13 Pick. 229; Taylor v. Henry, 2 do. 402; Wells v. Battelle, 11 Mass. 481; Acheson v. Western Reserve Bank, 8 Ohio, 118.

The Judge must sign and seal the bill during the same term. Givens v. Bradley, 3 Bibb, 195. It must be taken within the time the statute allows. Higbee v. Sutton, 14 Verm. 555.

A party is not entitled to a certiorari after argument, or even after joinder in error. Cheetham v. Tillotson, 4 Johns. 509.

Motion allowed — Lockwood, J. dissenting.

Motion allowed.