OPINION OF THE COURT — by

This is amotion for a. mandamus, to. the Hon. H« Cage, to sign and Seal a bill of exceptions.

We have no doubt of the power of this court to grant the writ, in a case like the present; and if we were to grant it on this application, we would assign our reasons for so doing.

The defendant, who moved the court to grant him a new trial, virtually withdrew the motion, when he refused to aceept the same when granted by the court. He complains of the taxation of costs, on granting the mo-*413iiion. If this be error, it is error appearing on the face of the record, and hence is not a proper subject for a bill of exceptions.

There is evidence on the face of the record, appearing in the bill of ex-eeptions, taken during the trial of the cause below, tending to show reasons why the court, on being moved for a new trial, was disposed to grant it. And if, in the record, it shall appear that the court erred in ruling out evidence which should have been admitted, the defendant below will have the full benefit of it, when his appeal shall be heard.

Motion overruled.