On Application for a Rehearing.
Nicholls, O. J.We adhere to our refusal to dismiss the appeal. The minor being plaintiff in a partition suit, it was a condition precedent to its institution by the tutor that she should have been authorized to that effect by a family meeting. Evidence of that fact was necessary in the trial court before a judgment could be rendered. Being documentary evidence, it would, had' it been offered, have been, necessarily, filed, and appeared in the record. Not so appearing, and no application for a certiorari' having been made to produce it, it must be held that the suit was instituted without the advice of a family meeting. After the decision in this case was handed down, the clerk of the District Court forwarded to us a certificate to the effect that he “did not remember” whether any testimony was taken on the *8trial of the cause, and that the certificate as made was under the direction of the plaintiffs’ attorney. This certificate is inadmissible. If the original certificate was erroneous, it could not be altered in this ea; parie manner. We take occasion to say that it is the duty of clerks of the District Court, in all cases, whether the testimony itself be taken down in writing, or not, to make upon their minutes a note of the fact of the swearing of witnesses (and giving their names) to the end of perpetuating the evidence of that fact, and not leaving it to rest upon memory.
The rehearing is refused.