Lee v. Gibbs

92 Mass. 248

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1865
• Status: Published

Opinion

Metcalf, J.

The thirty-fourth rule of the superior court requires that “ all exceptions to any charge to a jury shall, unless previously saved, be alleged in writing before the jury are sent out, and if not so alleged, the same shall not be allowed.” And that court was authorized by the Gen. Sts. c. 115, § 4, to make the rule. But the plaintiffs contend that this rule is annulled by St. 1863, c. 180, § 2, which provided that “ in the trial of any cause before a jury, neither party shall be required to allege his exceptions in writing to the rulings, charge or instructions of the presiding justice before the jury retire to consider the cause.’ The court, however, are of opinion that this statute was not intended, and has not the effect, to allow a party to delay the alleging of exceptions until after the jury have retired, but that it merely excuses him from alleging them thus early “ in writing.” As they were not, in this case, alleged either in writing or orally before the jury retired, the court rightly refused to allow them, although they were found conformable to the truth. See Joannes v. Underwood, 6 Allen, 242.

Exceptions overruled.