
    17 April,1820.
    BIGGS vs. M'ILVAIN'S ex'x.
    If the representative ofo decedent ÍU pendens appears & goes on to trial without a sci. fa it is too late after verdict for the adversary to object the want of a sci. fa.
    A bill ©f exceptions allowed and signed by the judge in vacation, tho* copied into the record, is no part thereof, asid cannot be noticed.
   Judge Mills

delivered fhe opinion.

This is a ;vlit of error to reverse a judgment rendered ¡a an appeal from a judgment of a justice of the peace. During its pendency in the court below, the appellant in that court, who was plaintiff in the warrant, departed this life. An order was entered on motion of the appellee below, directing a scire facias to revive the proceedings against his executrix. This scire facias did not issue; but at a subsequent term, both parties appeared and proceeded to trial, without any objection, for the want of a scire facias or any other cause.

A verdict and judgment was rendered fer the executrix, and the want of a scire facias is now assigned for error. This assignment cannot avail the plaintiff in error. The want of a scire facias was his own fault, and was supplied by the appearance of the opposite party. On that appearance, it was wholly unnecessary.

The remaining questions arise out of a bill of exceptions taken as if to the opinion of the court, during the progress of the trial, copied in the record. But this exception was allowed and signed by the judge in vacation, and directed tobe made apart of the record; We have not thought it necessary to notice the merits of the question made by the exception. For We are not apprized of any law which authorized the court below to sign, allow, and make part of the record, an exception to his opinion after the term was over. Such a practice might be fraught with pernicious consequences, if it were warranted by law; and as it is wholly unauthorized and improper, we feel ourselves bound to disregard it, as not composing a part of the record,

'fhe judgment must, therefore, be affirmed with costs and damages.  