President of the Tombeckbee Bank v. Malone , 1 Stew. 269 ( 1828 )

JUDGE SAFFOLD

delivered the opinion of the Court.

In this case the preliminary question is to be first considered. We have no doubt but that in all cases where the presiding Judge fails or refuses to certify exceptions taken, and of right this should have been done, the exceptions may, without the aid of our statute of January, 1826, be shewn by evidence aliunde.

This statute ^a enacts “that in all cases in which the Judge of any inferior Court shall have or may refuse to certify any exception taken on the trial of any cause, it shall and may be lawful for the Supreme Court to receive such evidence of the exception as may be satisfactory to it,” &c. &c. This statute enlarges the right to establish exceptions by evidence aliunde, but does not appear to have changed the rule as to the time and manner of taking them. Exceptions must be stated to the Court during the trial. The adverse party on being thus notified, may supply the defect, or waive the matter objected to. The substance of the exception should, during the trial, be briefly noted in writing, though it may afterwards be more formally written out, and for the sake of convenience and dispatch of business, the Court may grant leave to ihe party to prepare and present his bill of exceptions within a reasonable time after the trial. If the exceptions be taken and the bill of exceptions presented to the Judge, according to these principles, and he refuses to sign and seal it, the party may shew the exception by other evidence. But a due regard to the rights of the other party requires that such evidence should be taken in the same Court (unless the Court refuses to permit it,) at the earliest convenient opportunity, and with notice to the adverse party.

Hitchcock for plaintiffs. Parsons and Lyon, for defendants..

On behalf of the plaintiffs in error, it is contended that the statute provides for cases anterior to its enactment, in which the Judge may have failed or refused to certify any exception. It is true the phraseology of the statute presents some difficulty, but it evidently could not have been the intention of the Legislature to extend its operation to all cases, at any length of time after they had been determined by the inferior Court. Her.e the judgement of the Circuit Court was rendered in May, 1823, and the affidavit in proof of the exception made before this Court in July, 1826, without notice to the adverse party. Although we may be satisfied that the exception was taken as stated, yet in principle and as a precedent, we think it dangerous and inadmissible to permit a judgement to be affected by exceptions proved so long after the judgement has been rendered. It is not shewn when this exception was reduced to writing and presen-ed to the Judge for his signature. The affidavit states that it was truly taken at the time of the trial, but whether taken Verbally or in writing, and whether during the term or even during the circuit, the Judge refused to certify it, is not shewn. For aught that appears, it may not have been reduced to writing, and the Judge requested, until several weeks or even months after the trial. As the assignment of error is founded solely on the matter thus cl *imed as a bill of exceptions. The judgement must be affirmed.

a . Acts of18251 p-