Marsh v. Hand

Bartol, C. J., delivered the opinion of the Court. It appears by the record that this case was tried in the Superior Court, at the May Term, 1869; on the 27th of that month, a verdict and judgment were entered in favor of the appellee, who was defendant below, and on the olst day of August, in the same year, an appeal was entered by the plaintiffs. During the trial one bill of exception was taken by the appellants, which was regularly signed and sealed, and brings up for review the ruling of the Court below on a question of evidence, which will presently be considered. But before doing so, it. is proper for us to advert to some other matters which appear in the transcript, and have been much argued at the bar.

It appears that certain other exceptions to the ruling of the Court were taken by the plaintiffs below, in the course of the trial; but no bills of exceptions were prepared or signed and sealed at the time. After the trial some delay occurred in preparing bills of exceptions, caused as alleged, by the absence from the country of the defendant’s counsel, Mr. John IL Thomas, and after his return some disagreement arose between the counsel with regard to the exceptions which had actually been reserved at the trial. Several bills of exceptions being prepared by the plaintiffs’ attorneys, and the attorney of the defendant not consenting that the same should be signed by the Judge; a petition was filed on behalf of the plaintiffs, on the 15th day of February, 1870, setting forth the causes which had produced their delay, and praying the Court “to allow them an opportunity to show that at the trial of the cause the exceptions in the draft of exceptions, prepared by them, were duly taken as claimed, and that they have not been signed or sealed at an earlier date was not caused by- the petitioners, or by their attorneys.” On this petition an order was passed requiring the defendant to show-cause why the draft of bills of exceptions presented to the Court, should not be signed and sealed, and allowing testimony to be taken. An answer was filed by the defendant, ¹²⁵ and testimony was taken under the rule, consisting of the sworn statements of the counsel and of Mr. Prevost the clerk.

Upon consideration of the petition, answer and proofs, the Court below, on the 28th day of March, 1870, “discharged the rule,” and afterwards, on the 16th day of May, 1870, at the request of the plaintiffs’ attorney, filed an opinion in writing, setting forth as the reason or ground of the Court’s action, “that the requirements of the thirty-sixth rule of Court had not been complied with.” This rule is set out in the record, and requires every bill of exceptions, if required by either party, to be prepared and settled before the verdict is rendered ; and in every case to be prepared and submitted to the Court during the sittings of the term at which it shall have been taken, unless otherwise expressly allowed by the Court. On the 7th day of June, 1870, the plaintiffs entered an appeal from the judgment of the Court, and also from the order of the 28th day of March, “discharging the rule” and refusing to sign and seal the bills of exceptions as prepared and presented by the plaintiffs’ attorneys. In this Court the appellee has moved to dismiss both appeals. With respect to the appeal from the order refusing to sign and seal the bills of exceptions as presented, the motion must prevail; for the reason that from such an order no appeal lies.

The Statute of Westm., 2, ( 13 Edw. 1 , cih. 31,) which provides for bills of exceptions in actions at law, prescribes the remedy and course of proceeding, if the Judges before whom a case is tried, refuse to sign and seal a proper bill of exceptions. The party grieved by such refusal “ may have a writ grounded upon the Statute, commanding them to put their seals juxta formam statuti, &c. 2 Tidd’s Pr., (913,) 2 Inst., 427. The Statute does not prescribe the form or nature of the writ, nor provide from what Court it may be issued. The practice in England has been to obtain it from the Court of Chancery, by analogy no doubt to the mode of suing out writs of error. ¹²⁶ • In the case of Briscoe vs.Ward, 1 IB. & J., 165, there was a proceeding under the Statute, by a compulsory writ obtained out of chancery, commanding the Justices of the County Court to sign and seal a bill of exceptions.

The form of the writ may be found in 2 Harr. Ent., 675. This course was open to the appellants, if 'their bills of exceptions had been tendered in time under the rules. Or in such case, application might be made