President v. Osgood

1 Cow. 65

Opinion

Until the very last day of the limitation, this bill has continued in the parties’ possession. It is then filed. This is irregular. The Court would not have given them leave to do this on motion. Even at common law, the merely filing a paper did not make it a matter of record ; and by the stat-. ute, it is expressly required to be filed, under the direction of the Judge. Under the old statute he was bound to appear in open Court, and acknowledge the bill to be his act.

(c) The late statute (1. R. L. 319) says, “ It shall be the duty of the Justice who puts his seal thereto, for’ a witness, to return the same bill into the said Court, at the next term thereof ; and the said bill of exceptions, together with the said judgment thereon, shall be made a matter of record.” The proceeding, in this cause, was under the last statute. The bill should have been returned with the postea, and made matter of record, otherwise the Court can give no judgment upon it. The statute has not been pursued. Here, then, there has never been a bill of exceptions. If the Court dispense with a return in this case, they may, with the same propriety, in every case ; and a fraudulent party has it, thus, in his power to alter the bill.

Again; by coming so late, and delaying to file the bill till Ple last moment, it amounts to an abandonment of the bill. The circumstances are stronger than those which were holjcll to amount to an abandonment of the suit in Field v. Howland, (17 John. Rep. 85.)

If the Court have a discretion, they will, in an uneonscientious defence of this kind, exercise it, by refusing' the amendment. The plaintiffs took what every bank had taken on discount; and the .conveyances in question were fraudulent, and so found by the jury, as appears by the report of the case in 15 John. 162. And, in England, wherever judgments have been entered up as of an antecedent term, no exception will be found in favour of a writ .of error.

We have shewn that the plaintiff may .choose whether he will enter these continuances or not. He may elect to do this, in order to avoid the consequences of delay, which would require a scire facias before execution. But can the defen-, dant compel this, with a view to his own benefit ? The statute, limiting a writ of error to five years aiier rendering judgment, has reference to the rule of the common lawr, that judgment may be entered as of the term when the postea is returned. Otherwise, the defendant gains the time which is taken for arguing and deciding the case, and adds it to the five years for the writ of error. This is a delay not contemplated by the law ; and of which he cannot, therefore, avail himself. The ordy object of entering these continuances is to benefit the plaintiff.

J. Wells, in reply. The other side proceed upon the assumption that the defendants have no rights—the plaintiffs all. Accordingly, it is said, delay shall not prejudice the plaintiffs. The Court will add to this proposition, that it shall not injure the defendants. The statute gives five years, for bringing error, from the time of rendering the judgment. Gentlemen do not read it so. With them, it is only from filing the postea. When a question of law arises at the trial, there must necessarily be some delay in disposing of it. The plaintiffs arc, therefore, allowed to go back, by a fiction, to the return of the postea. And they now claim that the effect of this fiction is to shut us out from a writ of error, Suppose a delay of five years, before the judgment is, in fact, entered ; a writ of error cannot then be brought at all. We are thus, according to the plaintiffs’ reasoning, placed at their mercy, to have our rights abridged or divested, by their partial or total delay, for the five years, in entering judgment. Whether we exercise our right of calling for an amendment early or late, can make no difference, provided we are within the five years with our writ of error. The general rule, that judgment may be entered as of the term at which the postea is returned, is not disputed. Many of the authorities cited, to shew this, are old ones, where cases were brought up on special verdicts. Suppose judgment had been entered on these verdicts as of the term at which the posteas were returned : would this have been allowed to prejudice the party to any purpose ? The case adopted by our rules comes as a substitute for the special verdict. And the same rule should be applied. The rule, on the return of the postea, is a rule nisi, If cause is shewn, the judgment cannot be entered. And an order to stay proceedings enlarges the four day rule. Thus, the whole proceedings are carried forward, in fact, to a period when the Court actually come to adjudicate; and the cause ought to be continued on the roll to that time. The other side, then, have been irregular in omitting these intermediate continuances. The Court, to subserve the purposes of justice on both sides, will order an entry, nunc pro tunc ; though not where it will operate to the prejudice of either party. As to entering the continuances, then, we claim it as matter of right.

The application, to enter the bill of exceptions upon the roll, rests upon discretion. It is said, the Court will not amend for the purpose of reversing, but only in affirmance of judgments. Whether the amendment sought will tend to affirm or reverse, as yet, non constat, And the Court of Errors, by sending us here with a view to amend, shew that our proceedings are not exceptionable on this ground. The plaintiffs make up the record. They do this at their peril. We had nothing to do but to presume it regular. The omission is not discovered till we go int.o the Court of Errors. In practice, the bill of exceptions is rarely brought before the Court, as a bill, but merely as making a part of the case for a new trial; and it is afterwards thrown into the form of a bill. As to the objection of waiver, by suffering an cxe» cution to issue, that is the consequence of every judgment, whether the bill of exceptions be seasonably filed or not. Nor can the purchasers, under an execution, he defeated by a reversal of the judgment. And whether the judgment is to have effect from the time, as of which, it is entered on the roil, or from the time of docketing, cannot be made a question ; for here it binds from the commencement of the suit.

The Court, after having the cause under advisement for several days, granted the motion for a rule to enter the continuances, and directed that the bill of exceptions be attached to the judgment roll.

Motion granted:,

Vid. 1 K. & R. R. L. 376. Money et al. v. Leach, 3 Burr. 1692, 9 John. Rep. 288, n. a.