A writ of error cannot regularly be brought until after final judgment. (People v. Merrill, 14 N. Y., 74.) The judgment of the court was, before the enactment of the Revised Statutes, evidenced by a record duly signed and filed, which contained a full statement of the proceedings in the cause to and including the judgment of the court. It was this record that was brought up by the writ of error.
There were and are cases in which no formal record can be made up, and in such cases the final adjudication of the court is the judgment which is brought up.
It is insisted that, by the Revised Statutes (3 R. S., 5 ed., 1034, § 22), common-law record is dispensed with. That sec? tian provides that, upon any writ of error being filed which shall operate as a stay of proceedings, it shall be the duty of the clerk of the court to make a return thereto, without *152delay, containing a transcript of the indictment, bill of exceptions and judgment of the court, certified by the clerk thereof. A formal record would contain these several matters, but these do not constitute a complete record. It is quite obvious that the legislature did not intend to require a formal record to be filed and returned.
But the common-law record is not abolished. By section 4 of article 1, title 6, chapter 2, part 4 of the Revised Statutes, a person may require the district attorney to file a judgment record after judgment of acquittal or conviction. And by section 12 of the same article, a copy of the minutes of conviction and the sentence thereon, duly certified under seal, together with a copy of the indictment on which the conviction was had, is declared evidence in all courts and places of such conviction, in all cases on which it shall appear that no record of judgment has been signed and filed.
The statute having specified what papers the clerk shall return, in obedience to the writ of error, he cannot be required to return other or different ones. In some cases the courts seem to have overlooked the provisions of section 22, above cited.
In the case of the People v. Weed (31 N. Y., 465), a conviction was reversed because the record was not signed by a judge of the court, but was signed by the district attorney only. Davis, J., says: “ To constitute a record, it should have been signed by a judge of the court. The law on this subject in criminal proceedings has not been changed.” It is doubtless true that a record of judgment, to be valid, must be signed by a judge of the court. But that was not the question before the court. It was whether the matters required to be returned by the clerk in obedience to the writ of error had been returned, and, if so, whether they showed the conviction to be legal.
With great respect, I submit that the clerk had complied with the statute, but the matters so returned showed the judgment to have been pronounced by but one of the members of *153the court, and for that reason the conviction was properly-reversed.
The counsel for the defendant in error refers us to the case of Lowenbey v. The People (5 Park. C. R,, 414), as recognizing the necessity that a record of judgment be returned.
Ho question was raised as to the form or sufficiency of the return in that case. A judgment record was returned, and as it contained all the matters which the statute requires the clerk to return, it was, of course, sufficient.
In Safford v. The People (1 Park. C. R., 474) there was no record. The return was substantially the same as the one before us.
In the case of People v. Phillips, the printed papers in which were handed up on the argument, the return of the clerk contained the indictment, bill of exceptions and the judgment certified by the clerk, and this was held to be sufficient. There was no record of judgment. The return before ns is in conformity to the statute, and therefore sufficient. That part of the motion which prays for the dismissal of the writ of error must be denied.
The defendant in error may allege diminution and apply for certiorari to bring up proceedings in the court below in support of the judgment. (4 Cow., 91.)
It is alleged that the judgment returned is not the judgment actually rendered; and that if the judgment entered in the minutes kept by the clerk on the trial were returned, the defects appearing in the judgment contained in the return would be obviated, and the legality of the conviction established.
If it be true, as the clerk charges, that one of the prisoner’s counsel imposed upon him a garbled copy of the judgment, omitting from it matters actually contained in the minutes of the clerk furnished to him to enable him to prepare the return, he deserves the severest condemnation. His conduct was simply infamous.
But if he has given a correct copy of the judgment, and the clerk has, without authority of the court, and since the *154rendition of the judgment, inserted in his minutes the statement which would render the judgment legal, which without them was illegal, he has been guilty of a flagrant breach of duty, and shown himself unfit to be trusted in so responsible and respectable an office as that of clerk of the county of Wayne.
Bo man’s person or property is safe if the clerk of the county may manipulate the records of the county to promote the interests of friends or to punish enemies, or to cover up his own or others’ errors.
It is not necessary now to pass upon the question of veracity between the clerk and the counsel for the prisoner; that question can be disposed most satisfactorily either in the court below on a motion to correct the minutes, or in this court after return is made to the certiorari.
It is for the clerk to determine what he will return to the writ. If he should return the judgment as it is in the return on file, the judgment must be reversed. Should he return, as it is probable he will, the minutes as set out in his affidavit as used on this motion, and that return should stand, the defects now relied on to reverse the judgment would be cured, and an affirmance of it might follow.
It would seem to be necessary, in view of the probable action of the clerk, that the counsel for the, prisoner, if they think the return to be made would be false, to apply in the Oyer and Terminer to correct the minutes before a return is made, so that, if corrected, a correct copy of the minutes may be returned.
It is possible that this court, after a return to the certiorari, might compel an amendment ~of the minutes. It is not my intention to express any opinion as to the manner in which, or the tribunal by which, the minutes, if erroneous, may be corrected; counsel must act upon their own views of the practice, and the court must be left free to act as shall be in accordance with the practice when the question is again presented.
Denio, J., in Willis v. The People (32 N. Y., 715, 722), *155gives his views of the practice, where the proceedings to he brought up by the certiorari occurred iu the Oyer and Terminer, and are such as could not appear on the return.
A certiorari is allowed on the part and behalf of the defendants in error to the Oyer and Terminer of Wayne county, or to the clerk thereof, as counsel may he advised, to bring up such proceedings in the case of The People v. Walter Graham as may remain in that court or among the records thereof.
Leave is given to the parties to move in the Oyer and Terminer for such relief as they, or either, may deem himself or themselves entitled to. (16 N. Y., 614.)