Majority
p. 536The People, on the relation of Etheridge, vs. Herkimer C. P.
Headnote
Motion to quash a bill of exceptions, because signed by the judges in vacation and when they were not together. The answer to which, was, that the bill had been prepared long since, and a copy served on the defendant in error, that it had been presented in open court, but refused to be signed by the judges of the common pleas, solely on the ground that the party was too late in presenting it, and that now there was no allegation that it was erroneous or incorrectly made up. The judges signed the bill in compliance with the directions of an
p. 537
alternative mandamus, issued by this court, who were of opinion that the C. P. erred in determining that the party was two late in presenting the bill. It was further urged in support of the motion, that the alternative writ should have been served , .... . , , , m open court and not on the judges m vacation, as had been done in this case.
By the’ Court,
The service of the alternative writ in vacation on the judges was a good service. 4 Cowem 73, 403, and no objection is perceived to the judges complying with the requisition of the writ, by signing the bill of exceptions, although not together, if satisfied that the bill was correctly made up, as they probably were, it having been before them in open court, and they having refused to sign it merely because they considered it presented out of season. On that point they had received the advice of this court, and therefore properly complied with it. The motion is denied.
p. 539
CASES ARGUED AND DETERMINED IN THE COURT FOR THE CORRECTION OF ERRORS OP THE STATE OF MW-YORK DURING THE YEAR 1831.