
    
      GIROD vs. PERRONEAU’S HEIRS, ante 1.
    The time of certifying a record, when the case is tried on ments'aione*, is Z.hmited by
    Appeal from the court of the first district.
    r . . Livingston,
    . on an application tor a rehearing, By a decree of this court, in Dromgoole vs. Gardner & al. 10 Martin, 433, it was decided that a certificate, stating that the record contained a note of the evidence, was equivalent to the certificate, required by law, that it contained the evidence ; this decision strongly supports the argument addressed to the court, that they will look rather to see that the essential parts of the law are complied with, rather than its mere forms; and that if a certificate that the record contains all the evidence according to the best of the judge’s recollection, is, in fact, the same in substance with a general certificate, which, from the nature of things, must always imply such reservation; they will support it on the same principle which induced them to declare that a note of the evidence was equivalent to the whole of the evidence. ⅝⅛ judge’s recollection might be inaccurate, so might the note, and if the one is considered as sufficient, it would seem that the other should be also.
    East'n District.
    
      April, 1822.
    If, however, this authority should not be deemed applicable, the petitioner respectfully prays that the decree may be so modified as to make it an order on the judge to amend the return, inasmuch as the petitioner will be entirely without remedy if the cause is dismissed ; as the time for bringing a new appeal has elapsed, not from his fault, but from the inaccuracy of the judge below; which he states, and which the record of this court shews, has been his practice on other occasions.
    Porter, contra.
    The attention of the ap-pellees’ counsel has been directed by the court to this question, (arising out ol« the right of the appellant for a rehearing) to wit, can this court so modify their judgment or decree, ag to order the judge of the inferior court to amend his certificate, annexed to the record in this case, the time, wfithin which an appeal can be prosecuted, having expired ? 
      It is humbly conceived, under these circum- . . , stances, that it would be incompetent to the judge below, voluntarily, at the solicitation of the appellant, to change his certificate on the record, in any manner whatever: because he would be estopped from so doing, the time for appealing having elapsed. If then he could not legally amend or change his certificate voluntarily, this court can certainly have no power to compel him to do an act, which, if done voluntarily, would be illegal. Suppose the record in this case presented no certificate of the judge below, it is asked, would it be competent for this court (the time for appealing having expired) to order him to make the necessary certificate? It is believed not, and the case of Franklin vs. Kembal, 5 Martin, 666, strongly supports this supposition.
    If then an original certificate could not be legally given, it is humbly submitted, that an illegal original could not be so amended after an appeal had been laid, as to authorise this court to do that, which, from the original certificate, they could not do.
    As to any hardship on the part of the appellant, if any, the court has nothing to do with it: the law alone must be their guide. The law has pointed out the mode of having decisions of inferior tribunals reversed by this court, and if the appellee presents himself in a shape that this court cannot take notice Gf I him, he alone is to blame.
    But it may be said that this appeal was taken in time. But that does not change the position; that after the time for appealing has elapsed, the inferior court has no right to change the record by an amendment; and if not, then this court has no right to order the judge of the inferior court to do so. The petition of the appellant does not present a case suggesting a diminution of record, but wants something original, not appearing even on the record below.
    Livingston, in reply.
    In the application for a rehearing, I suggested, as a reason why the decree should be modified, that the time for, appealing having expired, we would be without relief. I learn from the defendant’s answer that this is the very reason why I should have no relief, that is to say, that altho’ the court might grant me that indulgence, in a case where I could obtain my object without it, by bringing a new appeal, yet when the indulgence is of consequence, it ought not to ^ . be granted. 1 confess I cannot see either the force or the justice of this reasoning. The °ffice °f a court of appeals is to correct the errors of inferior courts, where it can be done by their own decree, or to force the inferior judge to correct them when the superior tribu* nal cannot do it. The return of the judge cannot be corrected (if essentially erroneous) by the court of appeals, but they can oblige him to correct it; otherwise the right of appeal might be forever defeated by informal certificates and returns; for the party wishing to confirm an erroneous judgment, would have nothing to do but to get the judge to make two informal returns, and then in the course of proceeding, the two years have elapsed, and the judge is spared the mortification of seeing his errors exposed, and the party obtains the effect. It is asked, whether, if the judge had made no return, the court would direct him to make one after the time for appealing had expired ? I presume there can be no doubt but this court would do so, and would be bound to do so, if the appeal had bfeen entered in time, and that the want of relief if they did not do it, would be an additional motive. This court has the power ...... -| . of issuing all mandates to carry its powers into effect. Now, if a judge make no return when he is ordered, or make such a one as the court cannot act upon, does he not defeat their power? And can it be doubted that they have the power to prevent this ?
    This court is also directed to decide according to the “ right of the cause,” without regarding the defects of form. Now, here we have been ruined by a judgment, which we are ready to shew to be manifestly unjust, and yet, because the judge chooses to qualify his certificate, by saying that it is made according to the best of his recollection, we are to lose our remedy.
    Suppose, after the time for appealing should have expired, an appeal, regularly taken before, should be called, and it then be discovered that part of the record has been omitted to be served, would the court say with the counsel for the appellees, tho’ we llave on other occasions sent mandates to bring up the part of the record that is wanted, yet because you cannot in this case bring a new appeal, we will not grant you the usual relief. I have no fear that such principles could ever be adopted by this court in such a case.
    But does the present essentially differ from jt jf it d0 I really cannot perceive where J r the difference lies; the law is as imperative that the whole record be sent up on the appeal, as it is in directing that the judge shall certify; now a record with only half the proceedings is a faulty record; a return, in oth§r terms than those required by law, is a faulty return, — but the one is every dáy ordered to be amended: why not the other ?
    There is this ^further reason in the present case, that the judge below thinks, and many other persons think (erroneously according to the opinion of this court) that the returp in this case, really is of the same import with that required by law, and that the words expressed are always implied in the phrase prescribed by the statute, an error, which tho’ not inexcusable, would be fatal to the interests of my client, if no opportunity be offered of correcting it. ’⅜
   ⅝?outer, J.

delivered, the opinion of the Court. ' In this case an application has been made for a rehearing, and we have been requested to amend our former decree in such a manner, that instead of dismissing the appeal, we may remand the cause, for the judge to make out his certificate according to law.

The defendant has been heard in opposition to this application.

We think it should be granted. According to the decision in Franklin vs. Kembal. 5 Martin, 666, when the cause is tried on written documents alone, the judge may certify at any time as long as his memory permits him. If he can thus certify the present record, it will promote justice to remand it, to enable him to do so, as by these means we shall have it in our power to decide the cause on its merits.

The defendant has argued, that we are precluded from sending the case back, because two years have now elapsed: and that as the judge could not make out a certificate voluntarily, after this lapse of time, the court capnot direct him to do so. We are of a different opinion. Under the act of 1817, the judge may make out his certificate when he pleases. Whether the party can profit by it is quite a distinct question. The period, fixed by law for bringing up appeals, has no relation to the power conferred on the íudge to certify \ the record ; both are matters of positive law* and depend on the regulations particular to eacu.

Our former judgment must therefore be so modified that this record be remanded, with directions to the judge to certify it according to law, and that the appellant pay costs.  