The Opinion of the Court was delivered by
Treat, C. J.A bill of exceptions should be reduced to form and signed during the term in which the cause is tried, except in cases' where counsel consent, or th A Judge, by an entry on the record, directs, that it may be prepared in vacation and signed nunc pro tunc. And in all cases it should appear on its face to have been taken and signed at the trial. Walton v. U. States, 9 Wheat. 651; ex parte Bradstreet, 4 Peters, 107; Law v. Merrills, 6 Wend. 268. Where counsel consent that the bill of exceptions may be settled out of term, the better practice is to preserve the evidence of the agreement by the filing of a written stipulation, or by an entry on the records of the Court. The present case illustrates the propriety of such a practice. While the counsel all admit that the bill of exceptions was •to be prepared in vacation, they differ as to some of the terms of the agreement. If the agreement had been reduced to writing, or spread on the records of the Court, there would now be no difficulty in determining whether the bill of exceptions was properly made a part of the record of the case. As it is, we cannot ascertain with any degree of certainty what were the real terms of the agreement. The counsel probably misunderstood each other as to the mode of settling the bill of exceptions, and the sickness of the Judge prevented it from being perfected within the time prescribed. Under these circumstances, we are not disposed to say that the agreement was substantially violated, and therefore refuse to exclude the bill of exceptions from the record.
Motion denied.