The facts are stated in the opinion of the court, delivered by

The judge being required to sign a bill of exceptions which had been tendered to him during the trial of a cause, or to show cause, &c., made the following answer: “The court was of opinion that the matter set forth in the bill of exceptions, could not be reviewed on an appeal.”

The case was this: The defendants, sued for the price of a tract of land, resisted the claim on the ground of danger of eviction from an outstanding title in a third person. Judgement was given against them; but a stay of execution was decreed till a bond with security be given for the indemnification of the defendants. A bond having been filed, the defendants filed exceptions to the sufficiency of the sureties. An issue being taken thereon, the defendant’s counsel introduced witnesses, the depositions of whom he required to be taken down. This being objected to and the objection sustained, the bill of exceptions mentioned in the writ of mandamus was presented for the signature of the judge, which was refused.

Very soon after the establishment of this court, the question, whether it could sustain an appeal from the refusal of a continuance — the allowance or denial of which is admitted a matter in the discretion of the court, Broussard vs. Trahan’s Heirs, 3 Martin, 725 — time was taken for consideration, and the question was afterwards solved in the affirmative, in the following year. 4 Id.

We have since made a similar decision in regard to the discretion of courts in granting or refusing new trials.

Cases submitted to the discretion of a judge or court, are submitted to his legal discretion. In the exercise of this *112discretion, he is as subject to error as in any other parts of his duty, and his errors are equally fatal to the suitor. We are no(; dissatisfied with the decisions which leave this discretion a proper subject of examination in this tribunal.

A mandate ought, therefore, to issue directing the judge to sign the bill of exceptions.