Where a case has been transmitted to this Court irregularly and improperly, and decided under the impression that it was here by the consent of parties, on its appearing to the Court, at the same term, that it was not so brought up by consent, the Court will order the judgment to be vacated and the cause stricken from the docket.
PEARSON, J.
When this case was decided and the opinion filed, the Court acted under the impression that the making up and filing "the case" nunc pro tunc, and the transmission of the record to this Court from Fall Term, 1856, instead of from the Spring Term, 1856, when the trial took place and the appeal was taken, was all done by consent, for the purpose of avoiding the difficulty in which the appellant was placed, by reason of the fact that the Judge before whom the case was tried, and under whose direction the statement of the case ought to have been made out, and by whom the bill of exceptions ought to have been signed and sealed, had not made out a statement of the case. Upon an affidavit now filed that the case was not transmitted to this Court from Fall Term, 1856, by consent, a motion was made by the counsel of the appellee to vacate the judgment which had been rendered at this Term, and to strike the case from the docket of this Court. The motion is allowed.
Thereupon, a motion was made by the counsel of the appellant for a certiorari, which motion is also allowed.
We do not think it proper now to express an opinion upon the question, whether any Judge except the Judge who presides at the trial, has power to sign and seal a bill of exceptions, or cause to be made up a statement of the case, which is allowed to answer the purpose of the bill of exceptions; or whether the "presiding Judge" has power to do so, except at the Term when the trial takes place.
PER CURIAM. Judgment of this term vacated.