
    [Philadelphia,
    January 7,1836.]
    LANCASTER against DE NORMANDIE.
    IN ERROR.
    This court will not consider any paper annexed to the record, as furnishing the opinion of the court below, under the act of 1806, unless it also appear by the record, that the paper was filed at the request of one of the parties or of his counsel.
    Upon a writ of error to the Court of Common, Pleas of Bucks county, it appeared by the record, that James De Normandie brought an action of covenant in that court, against Morris Lancaster, in which he declared upon certain articles of agreement under seal; and the defendant having pleaded “ covenants performed,” &c. the parties went to trial upon this issue. Annexed to the record was a paper beginning thus,
    “ James De Normandie, 1
    
      v. > Covenant.
    
    Morris Lancaster. )
    The counsel for the defendant, requests the court to charge the Wy,
    
    1. That the action is brought upon articles of co-partnership, and that consequently no action of covenant can be maintained, because the plaintiff and defendant were co-partners.
    
      The present action may be sustained notivithstanding they were co-partners.”
    
    The lines in italics were averred to be the answer of the court.
    There were several other points, with the alleged answers of the court; but the paper was not authenticated by the signature of counsel or otherwise; and there was no bill of exceptions annexed to the record; nor did it appear that the counsel on either side had requested the court to file .their opinion of record.
    In this court it was assigned for error, that the court below had erred in their charge to the jury, upon the points stated.
    On the opening of the case this day, Mr. Ingraham for the defendant in error, suggested that there was nothing on the record to bring up the points, which the counsel on the other side had assigned for error.
    ' Mr. Ross stated .that the record was made up in conformity with the practice which had long prevailed in Bucks county. The paper in question was handed by the court to the prothonotary, at the end of the charge; and from the time of filing of the paper, it was supposed to be liable to exception under the act of 1806. The paper is sufficiently authenticated by the signature of the judge to the return made on the writ of error. He cited Downing v. Baldwin, (1 Serg. Sf Rawle, 298.)
    
      Mr. Ritiera, on the same side.
    Since the act of 1806, the practice has perhaps been unsettled; but many cases brought into this court have been considered and adjudicated, upon papers purporting, like the present, to be the charge of the court below.. Unless there is a bill of exceptions, or a request of counsel under the act of assembly, a judge has no right to order his opinion to be filed of record. 'It is to be presumed, therefore, that all that was necessary for the purpose was done. Is it to appear upon the record that the counsel requested the judge to file his opinion in writing 1
    
    [Huston, J. It was so held by us last June, at Harrisburgh.]
    The case of Downing v. Baldwin, certainly does not require it.
   The opinion of the court was delivered by

Gibson, C. J.

It is singular to find ourselves formally settling, at so late a day, a point of practice under the act of 1806, which has been a subject of daily occurrence and repeated decision. The adjudications on it, I had thought, were to be found in the reports; and I have consequently been surprised to find nothing there but the decisions in Downing v. Baldwin, and Brown v. Caldwell, (10 Serg. & Rawle, 114.) The first of these cases was determined shortly before I came to the bench; since which time the practice has been variously modified. Downing v. Baldwin settled no more than that the law of the case may be reviewed, upon the opinion of the judge who tried the cause, as a substitute for a bill of exceptions; but certain expressions of the Chief Justice might be thought to require no more than the presence of the paper on the file, without regard to the circumstances under which it came there. “ The act of Assembly,” he said, “ directs the opinion of the judge to be filed of record; it becomes then a part of the record, and being so, the superior court must of necessity take notice of it. It is surely as much a part of the record as a bill of exceptions; and I think rather more so, because a bill of exceptions is no part of the body of the record, but annexed to it; and may be withdrawn by the party who tendered it. But an opinion filed by positive command of law, is of the body of the record, and must so remain.” The consequence thus indicated is inevitable, where the opinion has been legally filed; but that was not the difficulty. It appears from what was said by Mr. Justice Yeates, that the paper had been filed indisputably at the instance of counsel; and the point was not in contest. But the chief justice seemed to think that an opinion filed was a substitute, if not an equivalent for, a bill of exceptions under the statute of Westm. 2; which requires the exception to be specifically propounded, before it is sealed. This, however, was denied by Mr. Justice Duncan, in delivering the opinion of the court in Brown v. Caldwell, in which it was certainly determined that the filing by request need not appear of record. The remarks made there, would, however, seem to call rather for a restricted than an enlarged construction. The vexation and inconvenience of the proceeding in practice, so faithfully depicted, subsequently forced the court in various instances, to exact a rigid compliance with the requirements of the act, and to settle the practice differently from the rule laid down in Brown v. Caldwell. What, then, áre those requirements'! “ In all cases where the judge or judges, &c. shall deliver the opinion of the court, if either party by himself or counsel require it, it shall be the duty of'the said judges respectively, to reduce the opinion so given, with the reasons therefor, to writing, and file the same of record in the cause.” Now, as the act authorizes nothing which it does not enjoin; where there has been no request, it gives no authority to put the matter on the record at all. It never was intended to permit the judge to set before the parties gratuitous incitements to appellate litigation, by exposing on the record, errors which had escaped their notice at the time. Even restrained to its legitimate uses, the proceeding has been found sufficiently prolific of vexatious and unprofitable contest. By the express terms of the act, the judge has authority to file his opinion of record, but at the request of a party desiring to have advantage from it; and when he does it of his own head, he makes nothing matter of record, which was not so before, How, then, is it to appear that he acted at the instance of the party ? Undoubtedly, as we have often decided in conformity to the words of the act — particularly in an exceedingly hard case during the last term at Harrisburgh — by his certificate filed with his opinion, or at least a memorandum at the foot of it; for as a court of error can inspect nothing but the record, it cannot receive information of the fact elsewhere. It is the business of counsel, therefore, to see that the proper evidence be sent up; for where the fault cannot be repaired by a supplementary certificate, he will else lose the benefit of his exception. For want of this, in the present instance, we are precluded from considering the assignment of error.

Judgment affirmed.  