Bartlett v. Lang's Adm'rs

GOLDTHWAITE, J. — We have no hesitation in granting, this motion, under the authority of the act of 1826. (Aikin’s Digest, 254, s: 5:) It appears that the Cojirt was suddenly terminated, by the Judge withdrawing from the bench, to which he did not return; consequently, the plaintiffs’ counsel could have no- opportunity to present his exceptions in Court, after the refusaiof the Judge to sign them. The state of facts is so different from those which existed in the case of Perkins v. Harper, 2 Stewart, 477, in which a construction was given to the act of 182Q, that if cannot be considered1 as governing this case. We are entriely satisfied with the. evidence of the exceptions, and direct the bill to be filed with the transcript of the cause, as a part of the record in this Court. 2. As it was urged in the course of the argument of this motion, that the bill of .exceptions was entirely unnecessary, for the reason, that no legal effect could be given to the judgment, because of the omission to sign the minutes of the Court, it may be proper to remark, that we do not consider the act of a Court invalidated* because the presiding Judge may fail or even refuse to sign, or otherwise authenticate, the proceedings. The fifteenth section of the act of 1819, Aikin’s Digest, 245, s. 28, directs, “ that the records of the respective Courts within this State, for each preceding day. of every session, shall be read in-open Court, in the morning of the succeeding day, except on the last day of the term, on which day they shall be signed by the Judge presiding in said Court.” But, as this act’ is merely directory, and does-not declare the record invalid, if either the [163] reading or signing is omitted, we cannot arrive at the conclusion, that it was intended to make these formalities essential. 3. The fiftieth section of the act of 1807, Aikin’s Digest, 83( s. 1, makes it the duty of the Clerks of the several Courts in the State, to make up and enter on well bound'books, to be kept by him< for' that purpose, a full and complete record; of all the proceedings in each suit or prosecution. Many other enactments provide for the safe-keeping and certifying of the records by the Clerks of the several Courts; and heavy penalties are imposed on them, for a neglect of duty. (Aikin’s Digest, 84, s. 12, 13 5 ibid. 241, s. 24, 26.) The Circuit Court is invested with jurisdiction expressly given by statute, to examine and'correct any omissions, neglects, corruptions, or defaults'of their Clerks. (Aikin’s Digest, 243, s. 18.) These citations from our statutes, shew most abundantly, that the Clerk is the proper custodian of the records, and that to him ic confided the care of making them in proper form. The Courts necessarily must possess the supervising power, to examine into and correct the errors which may occur. Such being-the case, we have no difficulty in arriving at the conclusion, that full credence is to be given.to the official act of the Clerk of one of our Courts.. If there should be reason to suppose, that mistakes or omissions have been made in the course of completing any record, it is within the power of the proper Court.to rectify, and place the record, in its.proper com dition-