
    William T. Bascom v. Isaac Parrish.
    Where a motion for a new trial in the court of common pleas is overruled by a division in opinion of the judges, the bill of exceptions is sufficient if signed by no more than the two judges who refused to sustain the motion.
    This is a writ of error to the Court of Common Pleas of Morgan county.
    The case was reserved for the purpose of settling a question of practice. The question is presented b.y the foltawing extracts from the transcripts of the common pleas and supreme court:
    From the common pleas journal: “ And afterwards, to wit, at the term of the court held at the court house in the town of McConnelsville in said county, on the 28th day of September, to wit, at the September term of said court, A.D. 1849, before the Hon. Arius Nye, President Judge, and the Hon. Nathaniel Sheppard, Oliver H. Keyser and Alexander McConnell, the associate judges of said court, this cause came on to be heard upon the motion of the said plaintiff for a new trial, for reasons on file, and was argued by counsel: On con sideration whereof, and the court being equally divided, it is ordered that said motion be overruled. Whereupon came the attorney of the said plaintiff and tendered his bill of ex ceptions to the opinion of the court in overruling said motion,” etc.
    From the supreme court journal: “ The bill of exceptions in this case being signed by but two of the judges of the court of common pleas, the question whether it is valid is reserved for decision in bank.”
    
      William T. Bascom, in person, for plaintiff in error.
    
      John B. Hanna, for defendant.
   Spalding, J.

Our statute prescribes, that “ when a party to a suit, in any court of common pleas within this state, alleges an exception to any order or judgment of such court, it shall be the duty of the judges of such county concurring in such order or judgment, if required by such party during the term, to sign and seal a bill containing such exception or exceptions as heretofore, in order that such bill of exceptions may, if such party desire it, be made a part of the record in such suit.” Swan’s Stat. 676, sec. 96.

By a decision of the judges in the court below, the motion for a new trial was overruled. Two of those judges were of opinion that the new trial should be had. To this opinion the plaintiff did not except.'

Two of the judges were of the opinion that the motion should be overruled, and they, in effect, made the order overruling the same. To this order the plaintiff did except, and the statute makes it the duty of the judges concurring in the order (and none others) to seal the bill. They did so in the ease before us. We hold that the law has been complied with, and that the bill of exceptions is sufficient.

Case remanded to the county for further proceedings.  