
    No. 6.
    Dicen Perry and Ira Peck, plaintiffs in error, vs. Anna Higgs, defendant.
    [1.] If the bill of exceptions bears date previous to the trial of the cause, and there is nothing in the record, by which it may be amended, and the true date arrived at, the writ of error must be dismissed.
    [2.] Where thirty-five days intervened between the signing of the bill of exceptions, and the suing out and serving the writ of error, citation and notice, the writ of error will be dismissed.
    Motion to dismiss writ of error.
    C. B. Cole, for the motion.
    
      W. S. Rockwell, contra.
    A motion was made to dismiss this writ of error, upon the following grounds:
    1st. Because it appears from the transcript, that the bill of exceptions was signed and allowed, before the case was tried in the Court below.
    2d. That the bill of exceptions was signed and certified, on the 10th day of October, 1848, and the writ of error and citation, were not sued out and served, till the 15th day of November, 1848.
    3d. Notice of the allowing and filing of the bill of exceptions, was not given the defendant, till the 16th day of November, 1848.
   By the Court.

Lumpkin, J.

delivering the opinion.

file certificate of the Circuit Judge, it is evident, bears an erroneous date; and yet the record furnishes nothing by which to correct this mistake. If it did, it would be amendable, according to the truth of the case. The Act of 1845 required the bill of exceptions to be drawn up and submitted to the Judge before whom the cause was tried, within four days after the trial thereof. This provision was so far altered by the Act of 1847, as to allow the bill of exceptions to be drawn up and submitted, for the signature and certification of the Circuit Judge, within thirty days after the close of the term in which said cause was heard. As before remarked, the signature and certification being dated a day previous to the trial, and the record affording no data by which to relieve the difficulty, and fix the true date, the defect would seem to be incurable.

The other objection is equally fatal, viz : That, according to the record, thirty-five days elapsed between the signing and certifying of the bill of exceptions, and the issuing and serving of the citation and writ of error, and thirty-six days between the signature and certification of the bill of exceptions, and notice of the filing thereof.

The writ of error must be dismissed.  