Webster v. Modlin

By the Court, Paine, J. In this case the plaintiff in error seeks to use the affidavit of the judge before whom the cause was tried, in tbe place of a bill of exceptions, the judge having gone out of office before any bill of exceptions was set369 tied, and bolding that he was not authorized to sign one after-wards. Without determining whether this is proper tice or not, we think the judgment must be affirmed; for the only error relied on is the refusal to grant a new trial, and the judge’s affidavit does not show that any exception was taken. The counsel for the plaintiff in error seeks to supply this defect by his own affidavit, showing that he did except. But certainly we shall not adopt the practice of trying the record upon affidavits of parties or counsel, while the judge before whom the trial was had, is living. If the affidavit of the judge can be received in'place of a bill of exceptions at all, it must show that the necessary exceptions were taken. The judgment is affirmed, with costs.