Ex parte Jones

8 Cow. 123

• Court: New York Supreme Court
• Decided: February 15, 1828
• Status: Published

Opinion

* Curia.

The decision of the judge, agreed upon to settle the bill of exceptions, was correct; and he gave the true reasons why the additional matter proposed should not be inserted. We have sometimes sanctioned the insertion of facts not entering into the point decided, upon the ground that they came from the party excepting; and operated as a waiver of the exception. Such was the late case of Jackson v. Tuttle, (7 Cowen, 364,) where the party proposed to insist, and there was reasonable ground for insisting, that the proof which his opponent offered, and which was proposed to be inserted, supplied the very defect which formed the point in the bill. But that case went on the ground of waiver. We have not gone farther; and it is not only unnecessary, but inconvenient to load a bill of exceptions with extraneous matter. Everything is so, beyond what may be essential to present the naked point of law, which is the true office of a bill of exceptions.

[1]

Motion denied.

In settling the hill, counsel have a right to be heard before the judge; and the judge has a right to correct his charge, even although the parties may have agreed upon it; (6 Cowen, 569;) and he has also a right to strike out suóh parts of the evidence as are immaterial and unnecessaiy to present question of law raised by the bill 6 Wendell, 1Q3. So, also, he may insert such proof as goes to waive the exception,; as, where the judge ruled that the plaintiff in ejectment'had made out a prima facie title In 'GK, under whom he claimed, and the defendant excepted, and afterwards the defendant proved that he himself claimed under Q-., it was held, that the judge, in . settling'the-bill of exceptions, might insert the defendant’s proof, so that the .plaintiff might insist upon it, as a waiver of the exception. 7 Oowen, .364. So, also, where the plaintiff asked one .of the defendant’s witnesses, on .cross-examination, whether certain real estate was not encumbered, which Vas objected to, as relating to a matter of record, but the answer, notwithstanding, was received, and excepted to, upon which (the plaintiff immediately proved the incumbrance, by evidence of record, the court allowed the ■exception as in itself .fatal, but received the evidence, which followed, as equivalent to a waiver, though the first evidence was not waived in so many "words. '6 Oowen, 449. So, where the defendant offered two witnesses, who were objected to and rejected, to which the defendant excepted, upon which the plaintiff waived his objection, but the defendant refused to examine the witnesses, the court said it was Immaterial whether the judge had decided right or wrong, for the defendant was not injured by the .decision. 7 Serg. 6 Rawle, 218.

And upon the authority of these cases, in an action of trespass, where the plaintiff rested without.proving anything against one of "the defendants, upon which he moved that the jury be directed to pass upon the-issue as against him, which was refused, and the defendant excepted. Irving, first judge H. Y. Com. Pleas, held that the evidence given in a subsequent stage of the cause, going to charge him, must be inserted in the bill, as tending "to show that the party was not prejudiced by the decision. Fowlds & Bell v. Kerrison & Ellis, MS., Oct. 1827.

So, also, where the judge improperly refused to non-suit the plaintiff, but the bill of exceptions contained subsequent evidence,.supplying the defect! the court refused to reverse the judgment on that ground. 6 Cowen, 484; 7 Wendell, 377.