ERR RROR to the Criminal Court for Cook County to review a judgment convicting defendant of murder and sentencing him to imprisonment for life. On motion after the death of plaintiff in error for the entry of judgment nunc pro tunc as of a date prior to such death. Denied. The facts sufficiently appear in the opinion. Messrs. William S. Forrest, Russell M. Wing, and Daniel Donahoe, for plaintiff in error: The power to enter orders and judgments nunc pro tunc has been exercised by the courts from the earliest times. 1 Freem. Judgm. § 56. The power is not confined to civil cases, but may also be exercised in criminal cases. Burnett v. State, 14 Tex. 455; Ex parte Beard, 11 Tex. 234; Smith v. State, 1 Tex. App. 408; Smith v. State, Id. 516; Binns v. State, 35 Ark. 118; Bobo v. State, 40 Ark. 224; Ex parte Jones, 61 Ala. 399; Benedict v. State, 44 Ohio St. 679. If in an appellate court either party dies after the cause has been regularly argued or submitted and while the case is sub judice; or, if in a trial court either party dies after verdict, or nonsuit, or the report of referees, or the like, and, while for any reason, the case is sub judice, the universal practice is, whether the death be suggested on the record or not, not to let the case abate, but to enter judgment nunc pro tunc as of a date during the lifetime tered nunc pro tunc, have been excluded as more properly belonging to another note. Courts have the power to make their records speak the truth, and where a judgment was rendered but not entered it may be entered nunc pro tunc even after the lapse of years. Groner v. Smith, 49 Mo. 318; Mays v. Hassell, 4 Stew. & P. (Ala.) 222, 24 Am. Dec. 750; King v. Burnham, 129 Mass. 598; Shephard v. Brenton, 20 Iowa, 41; Fuller v. Stebbins, 49 Iowa, 376; Reid v. Morton, 119 Ill. 118; Irvin v. Hazleton, 37 Pa. 465; Howell v. Marlan, 78 Ill. 162; Marshall v. Livingston, 77 Ga. 21; Long v. Long, 85 N. C. 415; Doe v. Litherberry, 4 McLean. 442; Matthews v. Houghton, 11 Me. 377. A judgment nunc pro tunc should not be entered unless by order of court. Erie R. Co. v. Ackerson, 33 N. J. L. 33. And a judgment nunc pro tunc should not be rendered unless a judgment has been actually rendered prior thereto. Gray v. Brignardello, 68 U. S. 1 Wall. 627, 17 L. ed. 693; Worley v. Shong (Neb.) Sept. 28, 1892; Perkins v. Dunlavy, 61 Tex. 241; Hyde v. Curling, 10 Mo. 359; Ladd v. Couzins, 35 Mo. 513. If the record of a justice is defective in not showing the date of its entry, it cannot be taken advantage of by an application for a writ of certiorari nunc pro tunc; but a writ will be issued to bring up the record. Gwinner v. Brendt, 2 Pa. Dist. Rep. 50, 6 Kulp, 532. The county court of Virginia may at a subsequent term render a judgment on a verdict at the next term nunc pro tunc where there was a motion to set aside the verdict, under section 3134 of the Code providing for a continuance of all untinished business. Van Gunden v. Kane, 88 Va. 591. An entry on the docket "judgt.," was held to be a regular judgment from which the clerk could enter up a judginent, and a judgment nunc pro tunc at subsequent term was unnecessary. Davis v. Shaver, 61 N. C. 18, 91 Am. Dec. 92. And where the entry "judgment" was carried on the docket to next term, and then no courts were held for a year, and at subsequent court the of both parties, and when it should or might have been entered up. Mitchell v. Overman, 103 U. S. 62, 26 L. ed. 369; Bank of United States v. Weisiger, 27 U. S. 2 Pet. 481, 7 L. ed. 492: Clay v. Smith, 28 U. S. 3 Pet. 411, 7 L. ed. 723; Gibbs v. Belcher, 30 Tex. 79; Mc Lean v. State, 8 Heisk. 22; Danforth v. Danforth, 111 Ill. 236; Brown v. Wheeler, 18 Conn. 199; Lewis v. Soper, 44 Me. 72; Goddard v. Bolster, 6 Me. 427, 20 Am. Dec. 320; Perry v. Wilson, 7 Mass. 393; Currier v. Iocell, 16 Pick. 170; Stickney v. Davis, 17 Pick. 169; Ryghtmyre v. Durham, 12 Wend. 245; Crawford v. Wilson, 4 Barb. 504; Burnham v. Dal ling, 16 N. J. Eq. 310; Gurney v. Parks, 1 How. Pr. 140; Ehle v. Moyer, 8 How. Pr. 244; Spalding v. Congdon, 18 Wend. 543; Kissam v. Hamilton, 20 How. Pr. 369; Dial v. Holter, 6 Ohio St. 228; Griffith v. Ogle, 1 Binn. 172; Isley's Case, 1 Leon. 187. See also 2 Tidd, Pr. 2d Am. ed. 932. After assignment of errors the death of plaintiff in error never abates a writ of error. Green v. Watkins, 19 U. S. 6 Wheat. 260, 5 L. ed. 256; Turner v. Booker, 2 Dana, 335; Lewis v. St. Louis & 1. M. R. Co. 59 Mo. 495; Kimbrough v. Mitchell, 1 Head, 539; Blake v. Griswold, 104 N. Y. 613; Cox v. Whitfield, 18 Ala. 738; Walpole v. Smith, 4 Blackf. 151; Carroll v. Bowie, 7 Gill, 34. The reason for the rule assigned in all the cases, is based on the maxim actus curiæ nem clerk extended the judgment as of the fall term prior thereto, the entry was sustained, but the judgment had become dormant at the time of the entry. Jacobs v. Burgwyn, 63 N. C. 193. A clerk may enter a judgment after the death of the plaintiff when it was rendered during his life. Then it will be error for the court to have it amended so as to appear to be entered as of the day rendered. Franklin v. Merida, 50 Cal. 289. As to time. A judgment rendered at the November term as of the March term, without noticing the intervening June term at which it was intended to have been entered, will be set aside with directions to the lower court to enter judgment at the next term. Robb v. Bostwick, 5 Ill. 115. An order made substituting parties but not entered may be entered as of the date of trial. Crim v. Kessing, 89 Çal. 478. The failure to enter a judgment on the verdict in four days after the adjournment of the court will not defeat the verdict where there is an appeal taken and dismissed; a judgment now may be entered nunc pro tune. Kane v. Hills, R. M. Charlt. 103. The rule in Georgia that when a verdict has been obtained and an appeal taken before signing, the judgment shall not be signed of a prior date than the time of disposing of the appeal, is modified when applied to a nunc pro tunc judgment. Perdue v. Bradshaw, 18 Ga. 287. And if an appeal is withdrawn that is taken be. fore entry of a judgment on a verdict, the judg ment should be entered nunc pro tunc. Under the statute all judgments on verdicts rendered at the game term are of equal date. Hardee v. Stovall, 1 Ga. 92. On overruling a motion for a new trial in 1856 where the verdict was in 1854 a judgment nunc pro tunc may be rendered. Davy v. Cameron, 15 U. C. Q. B. 175. For the purposes of the Statute of Limitation, inem gravabit. The parties are not to be prejudiced by the delay of the court. Mitchell v. Overman, 103 U. S. 64, 26 L. ed. 370; Isley's Case, supra. See also 2 Tidd, Pr. 2d Am. ed. 932; Crawford v. Wilson, 4 Barb. 504; Perry v. Wilson, 7 Mass, 393. It is not necessary to suggest death on the record. Isley's Case, Currier v. Lowell, and Crawford v. Wilson, supra; 2 Tidd, Pr. 2d Am. ed. 932. The case is not allowed to abate even when death is suggested of record. Perry v. Wilson, supra; Lewis v. Soper, 44 Me. 72; Crawford v. Wilson, supra. Application may be ex parte. Ryghtmyre v. Durham, 12 Wend. 245. The court may be advised of the death by a third party, and the motion to enter judgment nune pro tunc may be made on behalf of a third party. Storey v. Saunders, Hayes & Jones, Ir. Exch. Rep. 341. The principle is applicable to criminal cases. In Illinois, a judgment for costs in criminal cases is a lien on all the defendant's property, real or personal. It is made a lien by statute. 1 Starr & C. Stat. p. 871, § 513. There was no judgment for costs in criminal cases at common law. 4 Am. & Eng. Encyclop. Law, pp. 314, 323. the date of a nunc pro tunc judgment is as the date of the order of the entry. Borer v. Chapman, 119 U. S. 587, 30 L. ed. 532. In 1806 the court refused to order a judgment to be signed nunc pro tunc to give effect to a forfeiture made during the revolution. Seaman v. Miller, 1 Johns. 148. The failure of the clerk to enter a judgment of confession may be cured by an entry at any time nunc pro tunc and if he fails to enter it the court may order him to enter it. Shadrack v. Woolfolk, 32 Gratt. 707. The writ of error is a new action. Gibbs v. Belcher, 30 Tex. 79. The cause of action in the criminal court of Cook county was merged in the judgment entered against the plaintiff in error in the cause at bar. In the criminal court the cause of action was the claim that O'Sullivan, with others, conspired to murder and did murder Patrick Cronin. In this court the cause of action is the errors alleged in the judgment of the criminal court. The cause of action in this writ of error survives. Cox v. Whitfield, 18 Ala. 738. Is it not a sufficient reason to enter the judg ment nunc pro tune that a reversal of the judg ment in a criminal case removes the infamy that attaches to the judgment in the court below? Is the rule to be that this court will look after the property interests of the heirs but not the good name of the ancestor? The cause of action in the lower court has been merged in the judgment for life impris onment and for costs. The judgment for costs is collectible out of the estate of Patrick O' Sullivan. The administrator of his estate is chargeable with it. Judgment for costs survives, and will forever survive, unless discharged by payment, if the judgment be not reversed. His heirs take bis estate, real and personal, subject to the lien of that judgment for costs. O'Sullivan has property in Cook County, real and per An order overruling exceptions to a report in partition may be entered nunc pro tunc based on the assignment of error and supersedeas bond. Wade v. Bryant (Ky.) Feb. 25, 1888. And a decree, reversed by supreme court where the opinion is in writing embodying the decree, may be entered nunc pro tunc. State v. Mobile, 24 Ala. 701. After a judgment in ejectment the parties made an agreement as to the boundary line which the judge indorsed, "The judgment heretofore rendered in this case is set aside, and the foregoing agreement," which agreement was entered on the As to evidence used in obtaining a judgment nunc minutes, but this would not sustain a judgment at pro tunc. The judgment nunc pro tunc can be made only on record evidence showing that such a judgment had in fact been previously rendered. Draughan v. Tombeckbee Bank, 1 Stew. (Ala.) 66, 18 Am. Dec. 8; Harris v. Bradford, 4 Ala. 214; Andrews v. Branch Bank at Mobile, 10 Ala. 375; Yonge v. Broxson, 23 Ala. 684; Gibson v. Chouteau, 45 Mo. 171, 100 Am. Dec. 266: Hyde v. Curling, 10 Mo. 359; Kuehltbau v. State, 92 Ala. 91; Herring v. Cherry, 75 Ala. 376; Thompson v. Miller, 2 Stew. (Ala.) 470; Hansbrough v. Fudge, 80 Mo. 307; Gamble v. Dougherty, 71 Mo. 599; Makepeace v. Lukens, 27 Ind. 435, 92 Am, Dec. 263; Chissom v. Barbour, 100 Ind. 1; Aydelotte v. Brittain. 29 Kan. 98; Blize v. Castlio, 8 Mo. App. 290; Metcalf v. Metcalf, 19 Ala. 319, 54 Am. Dec. 190; Farmer v. Rogers, 85 Ga. 290; Grabam v. Lynn, 4 B. Mon. 17, 39 Am. Dec. 493; Re Limerick, 18 Me. 183: Witten v. Robison, 31 Mo. App. 525; Camoron v. Thurmond, 56 Tex. 22; Price v. Likens, 23 Tex. 635; Work v. Northern Pac. R. Co. 11 Mont. 513; Gray v. Thomas, 12 Smedes & M. 111; Ex parte Dean & Chapter St. Paul's, 18 Week. Rep. 724. The record must also show that a valid judgment could have been rendered, and that the condition precedent to judgment had been complied with. Womack v. Sanford, 37 Ala. 445; O'Riordan v. Walsh, 8 Iz. C. L. Rep. 158; Punch v. Walke, 34 Ala. 494. a subsequent term being treated as a fugitive paper. Chighizold v. Doe, 24 Ala. 237. And a decree of final settlement of an administrator nunc pro tunc will not be rendered on a paper purporting to be a final decree that is simply lodged with the papers although signed by the party who was judge at that time. Hudson v. Hudson, 20 Ala. 364, 56 Am. Dec. 200. And cannot be based on a writing made by one of the attorneys found in the papers in the case. Raymond v. Smith, 1 Met. (Ky.) 65, 71 Am. Dec. 458. So a decree pronounced on foreclosure but not drawn up could not be entered nunc pro tunc at a subsequent term. It is essential that it should bə passed and entered to be a perfect decree. Drummond v. Anderson, 3 Grant, Ch. 152. And where a decree was lost for thirty years the cause was directed to be reheard. Devering v. Cooper, 3 Ch. Rep. 27. On the other hand, there are some cases that hold that a decree may be entered nunc pro tunc based on office copy and memorandum of registrar's book. Donne v. Lewis, 11 Ves. Jr. 601; Jesson v. Brewer, Dick. 370; Williams v. Floyer, Id. 324; Lawrence v. Richmond, 1 Jac. & W. 241. Oral evidence is insufficient on which to base a nunc pro tunc order. Carter v. McBroom, 85 Tenn. 377; Waldo v. Beckwith, 1 N. M. 97; State v. Smith, 12 La. Ann. 349; Cadwell v. Dullaghan, 74 Iowa, 239; sonal. So far as the judgment for costs is concerned, the effect is the same as if it were a judgment against O'Sullivan entered in his lifetime in any civil action. This court has held that an action for costs is an action ex contractu. The judgment should be entered, therefore, nunc pro tunc in this cause, for the same reason that this court would enter judgment nunc pro tunc, if the cause of action in this court were error alleged in a judgment obtained in the court below in an action ex contractu. Gray v. Ferreby, 36 Iowa, 151; Doyle v. Wil kinson, 120 Ill. 430; Carpenter v. People, 8 Ill. 147. At common law the heir could sue out a writ of error to reverse to judgment in capital cases so as to defeat the attainder, although the ancestor could not sue out the writ to reverse the judgment in order to save his life. 4 Bl. Com. 392; Green v. Watkins, 19 U. S. 6 Wheat. 260, 5 L. ed. 256. To refuse to enter the judgment nunc pro tunc is virtually to hold that the death of the plaintiff in error while the case is sub judice and after he has done all that he could have done if he had lived to the moment of final judgment in the court of last resort, operates as a release of all errors in a writ of error. Cox v. Whitfield, 18 Ala. 738; Gibbs v. Belch er, 30 Tex. 79; Kimbrough v. Mitchell, 1 Head, 539; Blake v. Griswold, 104 N. Y. 613; Com stock v. Dodge, 43 How. Pr. 97; Lewis v. St. Louis & 1. M. R. Co. 59 Mo. 495; Brown v. Wheeler, 18 Conn. 199; Griffith v. Ogle, 1 Binn. 172; Perry v. Wilson, 7 Mass. 393; Goddard v. Bolster, 6 Me. 427, 20 Am. Dec. 320; Collins v. Prentice, 15 Conn. 423. The right to the costs is vested in the clerks of the supreme and criminal courts, in the sheriff and in other persons, entitled to receive them. The attorney general and state's attorney have not, therefore, the authority to satisfy the judgment for costs. Holliday v. People, 10 Ill. 214; Carpenter v. People, 8 Ill. 147; Schuylkill County v. Reifsnyder, 46 Pa. 446; Estep v. Lacy, 35 Iowa, 419, 14 Am. Rep. 498; State v. Gray, 35 Iowa, 503; United States v. Lancaster, 4 Wash. C. C. 64; Rowe v. State, 2 Bay, 565; Ex parte McDonald, 2 Whart. 440. On motion for rehearing. If our motion is not granted it follows, necessarily: 1. That there is no remedy whatever to the administrator, legatees, devisees, or heirs of a defendant against whom a judgment for costs in a criminal case in the court below has been entered, even though the defendant was con demned without warrant of law, and in his lifetime sued out, paid for and prosecuted a writ of error, until it was taken under advisement, if the defendant dies before this court inal case might be entered nunc pro tunc. Ladd v. State, 5 Ohio C. C. 276. But a delay of twenty years where the defendant A judgment nunc pro tunc was entered on a rewas in default, was allowed to be explained by arrest after an appeal had been taken and appelparol evidence and judgment nunc pro tunc en-lant escaped, and the appeal had been dismissed. tered. Rugg v. Parker, 7 Gray, 172. And in another case where, after the lapse of nine years, it was discovered that a decree that was passed was lost, the court directed a reissue of the order on the affidavit of the solicitor who obtained it. Russell v. Tapping, 3 Week. Rep. 379. And see Bobo v. State, infra. and an appeal on the nunc pro tunc judgment was And a nunc pro tunc order showing an election by the prosecuting attorney to stand on the first count which was made after the verdict in the absence of the accused where his attorney was preswas sustained. Camp v. State (Ga.) Oct. 8, 1892. A refusal to enter a demand for a trial in a crim As to nunc pro tunc entry in criminal cases. The Texas Statute, § 3151, Paschal's Dig., provid-ent ing for entering judgment at the next term in criminal cases if not entered at the term of the verdict, does not prohibit a nunc pro tunc entry after the second term pending the appeal. Ex parte Beard, 41 Tex. 234. Judgment of forfeiture of bail bond may be proved by parol evidence and entered nunc pro tunc. The Alabama rule as to evidence not followed. Bobo v. State, 40 Ark. 224. In a writ of error to reverse an attainder of treason where the reversal is obtained in the reign of another king and the record is made up after the death of the parties, the court would not make a rule to make it their judgment but only that their officer should make that entry now which he should have made when the rule was pronounced. Mohun's Case, 6 Mod. 59. A nunc pro tunc entry showing that an indictment was returned in open court was sustained. Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131. Where no judgment was entered during the term on a motion in arrest of judgment in a criminal case, and the judge in vacation telegraphed the clerk to enter a judgment in the order book as of a day in the term, such judgment was void. Passwater v. Edwards, 44 Ind. 343. The reason of the discharge of a jury in a crim inal case should be remedied by writ of error, and not by a nunc pro tunc entry. Moore v. State, €3 Ga. 165. As to the effect on a writ of error by the death of the appellant in a criminal case, see Herrington v. State, 53 Ga. 552, discussed in the main case. As to nunc pro tunc judgments affecting third parties. An entry showing sale set aside so as to allow an alias execution will not be granted so as to affect third parties who have no notice. McCormick v. Wheeler, 36 Ill. 114, 85 Am. Dec. 388. And a nunc pro tunc entry cannot be entered against a grantor so as to affect the rights of third parties. Miller v. Wolf, 63 Iowa, 233. And while a judgment nunc pro tunc may be entered after the lapse of eight years, yet it should not prejudice third parties. Murray v. Cooper, 6 Serg. & R. 126. On death of a party in vacation, a judgment on confession may be entered as of previous term but not to affect third parties. Oades v. Woodward, ■ Salk. 87. But where the judgment was not filed and an execution issued, a nunc pro tunc order of filing has reached a decision and duly entered judg-printed arguments presented to us at our ment. 2. That the creditors of such a defendant, so condemned and so deceased, are deprived of the right to levy upon his property in order to satisfy a judgment regularly obtained by them after the date of his arrest, except in so far as the judgment for costs does not consume his entire estate. Even the lawyer who labored to reverse the unjust judgment against him may not collect a judgment rendered for his services until after the judgment for costs has been fully satisfied. 1 Jones, Liens, § 100; Morgan v. Collier, 13 Ga. 493. It cannot be that the foregoing two propositions are true. There is error in them somewhere. Messrs. George Hunt, Atty-Gen., and Joel M. Longnecker, State's Atty. for Cook County, for the State. Per Curiam: Patrick O'Sullivan and others were convicted in the criminal court of Cook county of the crime of murder, and sentenced to be punished therefor by confinement in the penitentiary. He sued out of this court a writ of error upon the record. Errors were assigned on his behalf upon that record, and there was joinder in error by the attorney-general; and the questions thus presented were discussed in March term, 1891. But the record being unusually voluminous, and the questions discussed numerous, and requiring for their examination and solution the careful reading of hundreds of printed pages of evidence, and many legal authorities, it was impossible for us to give judgment thereon at that term, and so we then took the case under advisement. It is now made known to us that, on the 5th day of May, 1892, and before we had caused judgment to be entered upon the record or in any manner indicated to the parties or the public what our judgment would be, Patrick O'Sullivan died, intestate, leaving personal property which has been administered upon pursuant to law. It has been suggested to us, by one of the attorneys representing O'Sullivan in his lifetime, as amicus curia, that we now cause judgment to be entered in the case, nunc pro tunc, as of our March term, 1891, or as of some day subsequently, but before the death of O'Sullivan; and the administrator of O'Sullivan's estate, by his attorneys, makes a motion to that effect. We do not question either our power or the propriety of our causing judgments to be entered of record in cases pending before us, after the death of a party to the record subsequent to the submission of the case to us for decision, as of a day before his death, where the delay in causing judgment to be entered was allowed, so that the execution should retain | time, it was sustained. Watson v. Jones, 1 Ga. its priority. Chichester v. Cande, 3 Cow. 39, 15 Am. Dec. 238. A nunc pro tunc entry will not ordinarily be allowed so as to allow a plea of bankruptcy. Hall v. Brown, 59 N. H. 198. And a decree of insolvency entered at a subsequent term will take effect as from the date of entry so as not to prejudice other parties. Acklen v. Acklen, 45 Ala. 609. And a nunc pro tunc judgment was allowed notwithstanding the bankruptcy of the defendant. Pollard v. King, 62 Ga. 103. On the death of a bankrupt after an uncontested application has been submitted and a favorable report made, a discharge may be entered nunc pro tunc as of date of filing report. Young v. Ridenbaugh, 3 Dill. 242. As to nunc pro tunc judgments made in vacation. An order authorizing entry nunc pro tunc cannot be made in vacation. Hegeler v. Henckell, 27 Cal. 491. And cannot be made by consent of counsel. Puget Sound Agr. Co. v. Pierce County, 1 Wash. Terr. 75. A judgment having the judge's name signed by *he attorney during vacation and which judgment the judge had not seen, is void. Mitchell v. St. John, 98 Ind. 598. But in North Carolina it appears that consent will sustain a nunc pro tunc order made in vacation. McDowell v. McDowell, 92 N. C. 227: Shackelford v. Miller, 91 N. C. 181; Hewey v. Edmunds, 6 N. C. 243; Harrell v. Peebles, 79 N. C. 26; Molyneux v. Huey, 81 N. C. 106. And under the Georgia Act of 1843, a judgment of dismissal made in vacation may be entered at subsequent term nunc pro tune. Mountain v. Rowland, 30 Ga. 929. So when an order is made in court suspending the judgment of nonsuit for further consideration the judgment to be entered in vacation as of term 300. As to change in statute or charter. An order of court cannot be made nunc pro tunc after the court has been devested of jurisdiction over the subject-matter by statute. Ludlow v. Johnson, 3 Ohio, 553, 17 Am. Dec. 609. But in Springfield v. Worcester, 2 Cush. 52, it was held that delay in court in rendering a judgment on the verdict until after a repeal of the statute, should not prejudice, and that the judgment should antedate the repeal. And where an application for the appointment of commissioners was made that had to be ap-. pointed in six months after the passage of the act, but was delayed pending the consideration by the court of the constitutionality of the act, the order will relate back to date of application. Agawam v. Hampden County, 130 Mass. 528. If the charter of a bank expire before judgment after the term at which a statement of facts was filed for trial, the court at a subsequent term may render a judgment nunc pro tunc. State v. Waldo Bank, 20 Me. 470. As to notice. A nunc pro tunc judgment overruling a motion for a new trial may be made without notice. Stokes v. Shannon, 55 Miss. 583. And no notice is necessary to have an entry of confession of judgment made on the minute book which has been registered on the declaration of file in the clerk's office. Davis v. Barker, 1 Ga. 559. And a judgment nunc pro tunc may be rendered without notice. Clemens v. Judson, Minor (Ala.) 395; Long v. Stafford, 103 N. Y. 274. If a justice could enter a judgment nunc pro tune at a subsequent term, he could not without notice. and it must be on record evidence showing that such a judgment was rendered. McClain v. Davis (W. Va.) 18 L. R. A. 634. The cases in regard to mere delay of justice to has been purely for the convenience of the court or of some of its members, and in certain other cases, where injustice will otherwise result to one or both of the parties to the record, provided the judgment thus to be entered of record can be operative and effective as a judgment from the day as of which it is entered. But no case has been cited to us which holds that a judgment should be entered nunc pro tunc when it can be no more operative and effective than where it is entered of record as of a present date; and, since a court is never required to do a useless act, we do not think that any well reasoned case so holding can be found. Judgments in civil cases, whether in actions upon contracts or upon torts, are for the recovery or the denial of something either specifically or in the form of damages of some pecuniary value. If the plaintiff recovers, he thereby becomes entitled to have, and the defendant must lose, something which, but for that recovery, he would not have had and the defendant would not have lost. But in criminal cases, under indictments for felonies, the sole purpose of the action is not to give the people anything, but to punish the defendant in his person; and the primary judgment, when the defendant is found guilty, is, simply, the defendant being found guilty, that he be punished, specifying how. It is true that, under our statute, judgment is also rendered for costs; but this is incidental only, and it stands or falls with the primary judgment that the defendant be punished. The inquiry upon the trial is only whether the defendant be guilty, and, if guilty, the punishment that shall be inflicted upon his person; the question of costs being neither submitted nor considered, and the judgment therefor resulting solely as a legal consequence of the primary judgment. It is therefore apparent that, in judgments in civil cases, property rights are more or less directly affected; and such rights, under statute, are made to descend to and be obligatory upon the representatives, after death, of either or all of the parties to the judgment. But in criminal cases, where judgments are rendered against the defendants under indictments for felony, the people acquire no property rights, and the representatives of the defendant do not take that which is affected by the primary judgment, namely, the person of the defendant. It would therefore seem to inevitably fol low that the common-law rule in civil cases, that a writ of error does not abate by the death of the plaintiff in error, after error joined (2 Tidd, Pr. 1086), can have no application to criminal cases, since that rule rests upon the right of the defendant in error to have the judgment revived against the personal representatives of the plaintiff in error, and to thus enforce against them the judgment against him whom they represent. The only enter his judgment are not collated being regarded | term while he was alive. Mead v. Mead, 1 Mo. as foreign to the note. As to delay or negligence of party. App. 247; Central Sav. Bank v. Shine, 48 Mo. 456, 8 Am. Rep. 112; Crawford v. Wilson, 4 Barb. 504, Gurney v. Parks, 1 How. Pr. 140; Miller v. Gunn, 7 A party cannot take advantage of his negligence How. Pr. 159: Hastings v. McKinley, 8 How. Pr. in having a judgment entered. Where no reason is 175; Ehle v. Moyer, 8 How. Pr. 244; Campbell v. shown for the delay and it is not caused by the act Mesier, 4 Johns. Ch. 334, 1 L. ed. 858; Vroom v. Ditof court an entry nunc pro tunc will be refused. mas, 5 Paige, 528, 3 L. ed. 816; Wood v. Keyes, 6 Copley v. Day, 4 Taunt. 702; Wilkes v. Perks, 5 Paige, 478, 3 L. ed. 1068; Ryghtmyre v. Durham, 12 Man. & G. 376; Ogden v. Lee, 3 How. Pr. 153: Wend. 245; Spalding v. Congdon, 18 Wend. 543; Freeman v. Tranah, 12 C. B. 406, 21 L. J. C. P. N. Burnham v. Dalling, 16 N. J. Eq. 310; Den v. TomS. 214; Neil v. McMillan, 27 U. C. Q. B. 257; Law-lin, 18 N. J. L. 14, 35 Am. Dec. 525; Hess v. Cole. 23 rence v. Hodgson, 1 Younge & J. 368; Fishmongers Co. v. Robertson, 3 C. B. 970, 4 Dowl. & L. 656; Galpin v. Fishburne, 3 McCord, L. 22, 15 Am. Dec. 614; Barclay v. Brown, 7 Paige, 245, 4 L. ed. 142; Terry v. Briggs, 12 Cush. 319; Allston v. Sing, Riley, L. 199. And a decree nunc pro tunc admitting a will to probate omitted through the carelessness of the party will not be granted, after he has taken out letters of administration assuming the will would be probated as a matter of course, because his proofs were filed on proper blanks. Stapler v. Hoffman, 1 Dem. 63. Where the delay is not caused by the act of the party, neither loses any rights by death; otherwise where the delay is through negligence. Diefendorf v. House, 9 How. Pr. 243. A judgment on a verdict five years after can be entered without deciding whether the plaintiff could have prevented delay by asking for a change of venue, where after verdict and before judgment the judge dies and his successor was an attorney in the case. Jerrett v. Mahan, 20 Nev. 89. As to death of party before entry of final judgment. Where a judgment has not been rendered on the verdict, or a decree rendered on final submission, or cause not reached on proceedings in error or the like, and the delay was not caused by the act of the party, and one of the partics dies, the final judgment may be entered as of a day during the N. J. L. 116; Beard v. Hall, 79 N. C. 506; Dial v. Holter, 6 Ohio St. 228; Re Jarrett, 42 Ohio St. 199; Mitchell v. Schoonover, 16 Or. 211; Griffith v. Ogie, 1 Binn. 172; Fitzgerald v. Stewart, 53 Pa. 343; Denoon v. O'Hara, 1 Brev. 500; Bank of the State v. Kennerly, 3 Rich. L. 195; Aultman v. Utsey, 35 S. C. 596; Keep v. Leckie, 8 Rich. L. 164: Sappington v. Philips, 1 Yerg. 105; McClean v. State, 8 Heisk. 22: Griswold v. Hill, 1 Paine, C. C. 483; Bank of United States v. Weisiger, 27 U. S. 2 Pet. 481, 7 L. ed. 492: Clay v. Smith, 28 U. S. 3 Pet. 411, 7 L. ed. 723; Mitchell v. Overman, 103 U. S. 62, 26 L. ed. 369; Richardson v. Green, 130 U. S. 104, 32 L. ed. 872; New Orleans v. Gaines, 138 U. S. 595, 34 L. ed. 1102; Snow v. Carpenter, 54 Vt. 17; Adams v. Newell, 8 Vt. 190; Blewett v. Tregonning, 4 Ad. & El. 1002; Citizens Bank v. Brooks, 23 Fed. Rep. 21; Evan v. Rees, 12 Ad. & El. 167; Craven v. Hanley, Barnes Notes, 255; Tooker v. Beaufort, 1 Burr. 147: Norwich v. Berry, 4 Burr. 2277; Harrison v. Heathorn, 1 Dowl. & L. 529; Jones v. Le David, 2 Fowler, Exch. Pr. 163; Bridges v. Smyth, 8 Bing. 29; Moor v. Roberts, 3 C. B. N. S. 844, 4 Jur. N. S. 241, 27 L. J. C. P. 161; Heathcote v. Wing, 11 Exch. 555; Seymour v. Greenwood, 30 L. J. Exch. 189; Belsham v. Percival, 8 Hare, 157; Abington v. Lipscomb, 11 L. J. Q. B. N. S. 15; Miles v. Williams, 16 L. J. Q. B. 56, 9 Q. B. 47; Key v. Goodwin, 1 Moore & S. 620; Miles v. Bough, 15 L. J. Q. B. N. S. 30; Turner v. London & S. W. R. Co. 43 L. J. Ch. 430; Cumber v. Wane, 1 Strange, 429; Collinson v. Lister, 20 Beav. 356: Davies v. |