ON MOTION POE REHEARING.
Per Curiam.Counsel for the state objects to the decision formerly rendered in this case on the ground that this court assumed that all the testimony given on the trial was contained in the bill of exceptions, while the fact is. as counsel alleges, that all the testimony upon the trial was not so contained nor does the judge so certify. Counsel is wrong in his statement. It is true that the record did not pretend to bring up all the testimony, nor did we, in deciding the case, assume that all the testimony was contained in the bill of exceptions. We did, however, as matter of record, and not of assumption, find that the bill of exceptions contained all the evidence necessary to illustrate the point of the exception.
The bill of exceptions as proposed to be settled was served upon the county attorney, and afterwards settled by the judge, and in the certificate the judge says that the bill contains all the evidence bearing upon the exceptions taken by the defendant.
*13The bill of exceptions imports verity. (In re Thompson, 9 Mont. 381.)
It is the duty of the judge, not simply to sign what is presented to him as a bill of exceptions, but to examine it, and make it conformable to the facts, both in form and in fact. (Authier v. Bennett Bros. Co., 16 Mont. 110.)
If the bill of exceptions did not so conform, — as the state’s attorney complains that it does not, — the district judge should not have allowed it to come to this court in that condition. This court was obliged to examine and consider the bill of exceptions as it was transmitted from the district court, and to credit it with being correct.
The motion for rehearing is denied.