Defendant in error moved on the ground that it was important and ■ necessary for him that the bill of exceptions should he returned to this court as a part of the record, in order that the whole merits and the right of the matter might appear on the record. Plaintiff in error insisted, that the party making the motion prevailed on the whole record in the common pleas, but took exceptions on the trial of the issue in fact; perfected his judgment and issued execution before the bill of exceptions was settled; that now he could not send up a bill of exceptions for sustaining his own judgment; the defendant in error admitted the return to be perfect by joining in error. 2 Cow., 408.
Beardsley, Justice.The necessity for this motion is very loosely presented from the papers; although an error of fact may have been, yet after assignment of error and joinder therein, it has never been allowed to have an additional return put in. The motion is entirely without authority, and must be denied with costs. Rule accordingly.