On a Rehearing.
Cardwell, J.,delivered the opinion of the court.
A judgment was rendered in this cause January 14, 1909, which, upon a petition to rehear, was set aside. The rehearing was granted because of the insistence in the petition therefor that at the former hearing an affidavit of the deputy clerk of the trial court, intended to be incor^ porated in the record, to the effect that the bills of exception taken at the trial were signed within the time and in the manner prescribed by law when the judgment was entered, was not brought to the attention of this court.
Upon a careful consideration of. the case upon the rehearing, we find no occasipn to depart from the conclusion reached upon the original hearing. The final order is set out in the former opinion of this court, and the reservation of the right to plaintiff in error to tender its bills of exception to the rulings of the trial court provided that they should be tendered “within the time and in the manner prescribed by law.” As there was no consent of the parties, entered of record, that the bill of exception might be tendered and signed by the judge at a time other than during the term of the court or in vacation, within thirty days after the end of such term, they could have been signed and made a part of ithe record only during the term or within thirty days from the end thereof. As to when the bills of exception were signed by the judge the record is entirely silent, but we are asked to read the affidavit of the deputy clerk as conclusive that “they were filed in the usual manner and that the said judge authorized them to be filed, . . . and that all of said bills of exception were duly signed by the judge and deposited in the office of the clerk before said term of court ended.” The affidavit then sets out the *655opinion of the affiant as to what had been the custom of the Circuit Court of JSTansemond county with respect to the signing, etc., of bills of exception; that the record-before this court in this case was made up as all other records have been made up bv him; and that “it is the custom and has always been the practice in this court in making up records for the Court of Appeals for the clerk to note on the record by suitable language the bills of exception.”
This same affiant, by another affidavit given in this connection, states when the final order.in the case was entered and what it contained; that “there was no order or other memorandum entered by the court or judge, or authorized by the court or judge to be entered, making the bills of exception a part of the record”; and, further, that the following words, which did not appear in the final order, were inserted by him (the clerk) in making up the record for certification to this court, to-wit: “The bills of exceptions referred to in the foregoing order are in the words and figures following, to-wit.”
While the insertion of said words by the clerk as a part of the final order may be considered of no importance in this instance, they were clearly no part of the record. Blackwood Coal & C. Co. v. James, 107 Va. 659, 60 S. E. 90; Improvement Co. v. Karn, &c., 80 Va. 592.
In Barstow v. Marsh (Mass.), 4 Gray 166, the rule is clearly stated as to how and when hills of exception become a part of the record, and the bills of exception in that case were disregarded, although the opinion took occasion to say “it may be a hard case, but there is no way to set it right”; and the ground upon which the exceptions were not considered was “It does not appear by the entries on the docket of the court of common pleas that the exceptions were duly presented at the term at which they were taken; or that a continuance was taken, etc.” See also Doherty v. Lincoln, 114 Mass. 362; Brown v. Hale, 127 Mass. 160.
It is very true that the statute—sec. 3385, Code, 1904— *656says, that as soon as a hill of exception is signed by the judge the bill “shall be a part of the record of the case”; but it must appear from the record itself when the bill of exception was signed and thereby made a part of the record. That fact cannot be made to depend upon parol evidence. Neither parol evidence, nor custom, nor long practice in a particular court, will avail to add to or take from the record as made under the supervision of the trial judge. To depart from this established rule would be to invite interminable strife as to what constituted the record of a case, and confer upon clerks of trial courts power and authority not conferred upon them by the statutes defining their duties, and make in many cases the verity and truth of the record to depend on a conflict of evidence.
Similar language to that in our statute has been construed by the Supreme Court of West Virginia to require the affirmative action of the court, through its order or memorandum on its order book recognizing its bills of exception as authentic. Wickes v. B. & O. Ry. Co., 14 W. Va. 173, 175; Bank v. Showacre, 26 W. Va. 48, 53.
The record itself should show the jurisdiction of the trial court, which is purely statutory, to sign bills of exception and make them a part of the record, and parol evidence is insufficient to show these facts.
For the foregoing reasons, as well as those stated, and upon the authorities cited in the opinion delivered at the former hearing of this cause, the judgment entered at that time is approved and will be adhered to.
Affirmed.