delivered the opinion of the court.
This was an action of assumpsit, brought by the defendant in error against the plaintiff.
It appears by the record, that the case was tried at the March term, 1853, of the Monroe Circuit Court, when a verdict was rendered for the defendant below. The plaintiff thereupon made a motion for a new trial, which was taken under advisement by the judge, who did not return his decision until the 27th day of January, 1854, on which day he issued to the clerk the following order, which is stated by the clerk to have been entered on the minutes by consent of the parties;—
11 In vacation, January 21th, 1854.
“ To the clerk of the Circuit Court of Monroe county. The above stated cause was at the March term, 1853, taken under advisement by agreement of parties. After examination, I have decided to sustain the motion for a new trial. You will therefore enter up the judgment accordingly. Given under my hand and seal, January 27th, 1854. F. M. Ro&ERS, [l. S.]”
Afterwards the plaintiff filed an amended declaration, containing additional counts, and at the March term, 1855, the ease was again tried, and a verdict rendered for the plaintiff below.
A preliminary question is raised in behalf of the plaintiff in error, which is conclusive of the case, and which renders it unnecessary to consider the other questions presented. It ,is urged that the Circuit Court had not jurisdiction of the case when the judgment complained of was rendered, because the decision of the motion for a new trial was not made within the time limited for *211that purpose by law, and because the term of office of the judge wbo granted the new trial, bad expired when the fiat granting it was made; and therefore, that the verdict for the defendant on the first trial is in full force in law.
This presents a question of much practical importance, but it appears to us to be attended with no difficulty.
The statute under which the judges of the Circuit Courts are authorized to take cases under advisement, provides that they “ shall have power, whenever, in their opinion, the importance of the case may require it, which may be submitted to them for decision on any point thereon, to take the same under advisement, and the opinion given thereon in vacation, to be as of the term: Provided, however, that such opinion shall in no case be deferred for a longer time than four months.And provided, also, that the right to except, and take writs of error to such opinion, shall not be affected thereby; and that a bill of exceptions to such opinion may be taken at the term of the court held next after such opinion may have been given,” &c. Hutch. Code, 740, § 13,, act of 1833.
It is clear, from these provisions, that the power of the judge to act upon the matter taken under advisement, cannot be exercised, unless his decision be made within the time limited for that purpose; and it would appear to follow, that if his decision be not made within that time, it cannot be made afterwards, and that, if the matter taken under advisement be in effect a disposition of the cause, as was the case here, his decision will not affect the rights of the parties, but that the verdict will stand as if no motion had been made to set it aside.
In opposition to this result in the present case, it is said that the record shows that the decision was suspended by consent, for a longer period than that limited by the statute. Without making any decision upon the point, whether it is .competent for the parties in a case like this, to extend the power of the judge over the case by consent, and to give to his decision all the force of a regular judicial act, we think that the record does not furnish any sufficient evidence of such consent. If the consent could have such effect, it would be necessary that it should be. evidenced in such certain *212and formal manner, as to be effectual upon the parties by way of estoppel. But here the only evidence of such consent is, the informal and unofficial act of the clerk, who, in making his entry upon the minutes of the court, of the decision of the judge, states that the opinion “was handed in and entered on the minutes by consent of the parties.” This statement was made in relation to a matter done in vacation, and was in no wise a necessary part of the official act to be done by the clerk, which was simply to state, that he had received the written opinion of the judge on a certain day, and then to spread it upon the minutes. It can, therefore, have no further force than an unsworn statement of a witness, or a volunteer statement of the clerk, and cannot bind the parties. Nor does the statement in the written opinion of the judge show such consent. That statement is, that “ the cause was, at the March term, 1853, taken under advisement by agreement of parties.” Nothing is said in relation to any agreement or consent of the parties, that the decision of the motion should be deferred beyond the time limited by law.
But in addition to this, it appears that the decision was not made until the term of office of the judge had expired — a matter of which we must take judicial notice. To a decision made by a judge under such circumstances, no consent could give effect as a judicial act, and it cannot be considered otherwise than as having never been made. Not only is there an absolute want of power to do the act, but the exercise of the power under such circumstances, would deprive the party who might be aggrieved by the decision, of the privilege of exception secured by the statute. For the judge making the decision would have no power to sign and seal a bill of exceptions, nor could that act be done by his successor at the next term of the court, because that judge would be wholly unadvised as to the evidence and the proceedings of the court which occurred at the trial of the cause.
The conclusion, therefore, is not to be avoided, that the new trial must be regarded as having never been granted; and the motion having never been acted upon during the official term of the judge, must be considered in law as at an end, and the original verdict must be taken to be in full force. Consequently the case *213was at an end, and the court had not jurisdiction to proceed to the new trial, which resulted in the judgment now complained of. This result is not affected by the fact, that the defendant appeared and defended the suit upon the new trial, and made no objection to the irregularity of the proceedings. This might create a presumption that he acquiesced in the irregular act of the judge; but in law it cannot give authority and validity to a judicial act which is void for want of power, nor can it confer jurisdiction to take further cognizance of the cause, or conclude the plaintiff in error from denying the jurisdiction of the court in proceeding with the new trial. Whatever may have been the private understandings of the parties, and however it may be violated by insisting upon the rigid rules of law, we can only look to the case as it is presented by the record, and apply the rules of law which must control our action.
Under this view of the case, we think that the judgment should be reversed, and a judgment rendered in this court on the original verdict for the defendant below.
Judgment accordingly.