¶1When this ease was called, counsel for the state submitted a motion to dismiss the writ of error because it was, by law, returnable to the last term of this court. In support of the motion he relied upon the following facts:
¶2The bill of exceptions was certified by the judge, in the usual'form, on January 19th, 1874. It was served and filed in office on the next day. It was certified by the clerk on February 23d, 1875, and reached the clerk’s office of this court on the 25th of the same month.
¶3In reply to this motion, one of the counsel for plaintiff in error, stated in his place, that at the last term of this court he discovered that this case had not been forwarded; that h¿ immediately saw the clerk and caused-him to send it on; that it reached this court before the call of the docket of the Albany circuit, to which it properly belonged, but after the commencement of the term; that he then moved the court to have the same entered upon the docket and tried, but this was refused ; that the case thus was placed upon the docket of the present term.
¶4The motion was sustained and the writ of error dismissed.