Page:Federal Reporter, 1st Series, Volume 10.djvu/675

 WHALEN V. SHBBIPAN. 663 �of error is so far a different System of procedure, established by a statute of the United States, that the provisions of the state statutes do not in any respect govern proceedings under it. The fact re- ferred to, that the rules of the state supreme court still retain the expression "bill of exceptions," (rule 34,) does not, as it seems to me, affect the question, although it may not be exactly true in view of ihat fact, as stated in my former opinion, that "bills of exceptions" are unknown under the Code of New York. �The point made on the part of the defendant that, after the allow- ance of the writ of error, the case is pending in the supreme court and not in this court, and that, therefore, this motion, which is in effect a motion to alter the record to be reviewed, should be made in the supreme court and not here, seems to me to have great -weight, and to be supported by authority. Clark v. Hancock, 94 U. S. 493. It is unnecessary, however, to pass on the question of the power of this court to grant the relief, since I am not satisfied that a case for relief is made out. But, as the plaintiff may be advised to apply to the supreme court, the motion will be denied ■without prejudice to fiuch application. �Note. The rules of the Kew York Code of Practice have no application oyer writs of error and bills of exceptions in the United States courts. Wha- len V. Sheridan, 5 Fed. Eep. 436. Notwithstanding the rule of court requir ing a bill of exceptions to be drawn up within 10 days after the trial, a ease may be excepted from its operation when it is just to do so. Marye v. Sti-ouse, 5 Fed. Kep. 494. The power to reduce exceptions taken at the trial to form, and have them signed and flled, is conflned, under ordinary circum- stances, to the term at which judgment was rendered. Whaien v. Sheridan, 5 FED. Bep. 436 ; citing Muller v. JShlers, 91 U. S. 251.— [Ed. ��� �