Joseph Bennett & Co. v. Davis , 1 Morris 364 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The first and principal matter relied on as error in this case, is the refusal of the court to charge as set out in the bill cf exceptions, which reads as follows :

“ Be it remembered, that on the trial of this cause at the present term of this court, the defendant offered in evidence the order on file, (which is made part of this hill) together with testimony tending to prove that the order was taken by plaintiffs on account of the notes in suit. And on the part of the plaintiffs it was shown that the order was tendered back to defendant on the trial of this cause before the magistrate, and placed with him for defendant. Upon this evidence the plaintiffs counsel requested the court to charge the jury that plaintiffs were entitled to recover on the notes,but the court declined thus to charge without charging at the same time that the plaintiff was bound to return the order in a reasonable time, and that the jury were to judge of that.”

There is certainly not enough set forth here to show error on the part of the court. The nature and amount of the order here referred to, no where sufficiently appears. It is true that among the papers of the case is the copy of an order, that seems to tally with that here referred to, but there is no evidence to show that it is the same. The statement in the bill of exceptions that this order is made a part of the said bill does not make it so.

But again, the bill of exceptions states that certain facts were proved. but does not state that other and different facts were not also proved. We certainly cannot say that the court below erred in its charge while we are ignorant of the entire basis upon which that charge was founded. Probably, it is true, the facts set forth in the bill of exceptions are all that were proved, bearing upon the point under consideration, but we cannot say that such was the case. Counsel have the right to draw up bills of exceptions and if they embody only truths, the court is required to sign them, and they then become a part of the record. As a matter of justice then, such bills of exceptions should be required to make out a complete case and show affirmatively that the court below had committed an error. Such is not the case in the present instance. We need not therefore determine whether the position taken by the counsel for the plaintiff in error on the point raised and stated by him, is or is not tenable. It is not properly raised.

The answer to the other points made, is so evident as not to call for further consideration or comment.

Judgment affirmed.