By the Court This case was tried below on tbe indictment, about tbe third day of October, 1859. Tbe counsel for "the Defendant prepared a bill of exceptions and proposed tbe same to tbe District Attorney, who proposed amendments to tbe same. Tbe bill and tbe proposed amendments were then submitted to tbe Judge wbo tried tbe cause, and after bearing both counsel, tbe Judge settled tbe same on tbe 26th of November, 1859. After such settlement tbe counsel for the Defendant bad tbe bill as amended, engrossed, and a motion for a new trial was argued upon it and submitted to tbe court. Tbe filing of tbe engrossed bill, and tbe argument of tbe motion upon it, took place about tbe second day of December, 1859. After this, and before tbe decision of tbe motion, tbe Judge conceiving that be bad not settled tbe bill in accordance with tbe truth, made several corrections in tbe same on bis own motion, and then decided tbe motion for a new trial on tbe bill as corrected, denying the same. Whether tbe Judge was right in regard to tbe facts of tbe trial on the first settlement of tbe bill, or whether be made it conform to tbe truth more closely by bis subsequent amendments, is immaterial on tbe consideration of this motion. We presume be was actuated by tbe best of motives in making the changes. Tbe point is, could be do so under any circumstances, without *380giving the parties an opportunity to be heard on the bill after the alterations were made ? In a criminal case the District Attorney and Counsel for the Defendant, are not at liberty to waive anything for the State or Defendant, so as to bind the Judge in the making up of the record. The Judge in one sense represents all parties, and must see that the record is made to accord with the truth, and when the bill of exceptions is settled, he is supposed to have done so, and the parties base their arguments upon the questions as they are presented by the bill as settled. Should the Judge, even after the argument is closed, and the case submitted, find out that he was mistaken as to some point in the bill, he would not only have the right, but we think it would be his duty to see to it that the proper correction was made. But how ? If he could make them without notifying the parties, and then decide the motion upon the bill as corrected, he would be effectually deciding it without an opportunity being given to the Defendant to be heard in it at all, as the corrections made, might well change the whole aspect of the questions first argued, and present them in an entirely different light. We could never assent to such a power being exercised by a Judge over the records of his court, as it would lead (its least consequences being considered) to great uncertainty as to what a record is, and in some hands might be exceedingly dangerous to the rights of suitors. When upon an after examination the Judge ascertains that he has made a mistake in the settlement of the case or bill of exceptions and desires to correct it, he should call in both parties and allow them an opportunity to present their arguments upon the questions, as the new and corrected bill may present them.

We feel it our duty to uphold this rule, by striking out the amendments made by the Judge in this case after the settlement of the bill of exceptions and the submission of the case= to him upon them. •

Motion granted.