Wilson v. Owens ( 1834 )

Mr. Justice Smith

delivered the opinion of the court.

The record in this case does not show that the exceptions to the opinions of the court were taken at the time, and before the jury retired from the box. Repeated decisions of the supreme court of this state have established and confirmed the principle, that the appellate court will not notice exceptions to the opinion of a court; unless it shall appear from.the face of the bill of exceptions, that the exception was taken to the opinion of the court at the time of its delivery. The record before the court does not show, even by inference, that the instructions of the court to the jury, or the refusal of the court to charge as requested, were excepted to at the time by plaintiff’s counsel. Under this rule then, any matters contained in the bill of exceptions, which preceded the verdict of the jury, | is not before us, and does not 'constitute a subject of adjudication.^ There is, however, one question presented by the bill of exceptions, and upon which the judge below decided, of which we can take cognisance.

It is the question arising upon the motion of the plaintiff, to enter a nonsuit in the court below, after verdict found. The jury had returned a verdict for the defendant for twelve dollars and fifty cents; and the motion of the plaintiff in error was predicated upon the 18th section of the circuit court law; which provides, that if any suit shall be commenced in any circuit court, for a less sum than such court can legally take cognizance of; or if any person shall demand a greater sum than is due on purpose to evade this act, in either case the plaintiff shall be nonsuited and pay costs, provided, &e.

In this case there is nothing to show that suit was commenced for more than was due; or that the defendant demanded in his writ a greater sum than was due on purpose to evade the law defining the jurisdiction of the circuit court; and one of these two cases must be shown to exist to the satisfaction of the circuit court, before it would be competent for such court to non-suit the plaintiff. Presuming that there was no greater evidence of such fact produced to the court below than the record shows, I am convinced that the overruling of the motion was correct.

.Tudgment will therefore be affirmed.