
    Harris v. The Planters’ Bank.
    The statement of the clerk, as to the condition of the record, cannot supply a material defect in the bill of exceptions, such as an omission to show that the exceptions w^re taken in time.
    IN ERROR, from the circuit court of the county of Rankin.
    Swan for plaintiff in error.
    Montgomery & Boyd contra.
   Turner, J.

This cause must go off on the preliminary question, as the only errors complained of are those contained in the bill of exceptions.

It does not appear, except by the statement of the clerk, that the exceptions to the opinions of the court were taken before the jury retired from the bar to consider of their verdict. This is not a matter for the clerk to prove. If we relax the long established rule on this subject, the next thing will be to receive affidavits of the fact. It is the business of counsel to set forth in the bill of exceptions that it was tendered in time, if such was the fact.

In the case of Maulding v. Rigby, 4 Howard, 222, it was decided that the transcript made by the clerk in making up his record of documentary [evidence referred to in a bill of exceptions, was not sufficient, although the clerk stated that “they are the records and executions referred to in the bill of exceptions.” See 4 How. 272, 370, 431; 5 How. 14, 278, 503, 606.

Judgment affirmed.  