William Tidd.

The practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 25 of 111)
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the use of running water, as an owner of adjoining lands, had appropriated it, and by his
declaration claimed the right thereto as the owner of a mill not twenty years old, this was
holden to be bad, and the judge at the trial would not allow the declaration to be amended;
Frankum v. Earl of Falmouth, C Car. & P. 529, per Alderson, B. 4 Nev. & M. 330, S. C. ; and
see Kirby v. Simpson, 3 Dowl. Rep. 791. 10 Leg. Obs. 334, S. C. And even if the jury find
the plaintiff's right specially, and it be indorsed on the postea, under the twenty-fourth sec-
tion of the statute, the court above will not give judgment for the plaintiff on that finding ;
because, if the plaintiff had stated his right properly, the defendant might have pleaded
differently; Id. ibid. So, in trespass for taking "mirrors and handkerchiefs," where the de-
fendant justified the taking of the mirrors, but by mistake omitted the taking of the hand-
kerchiefs, the judge held that this omission could not be amended at the trial ; John v. Carrie,
6 Car. & P. 61S, per parke, B. And see Young \. Fewson, 13 Leg. Obs. ^2<o, perl,^. Denman,
Ch. J. And a judge sitting at nisi prius has no power, under the above statutes, to order an
amendment of the award of the venire facias, on the niM prius record ; Adams v. Power, 7 Car.
& P. 76, jofr Bolland, B.

By another clause of 3 & 4 "W. IV. c. 42, § 24, " the said court or judge shall and may, if
they or he think fit, in all such cases of variance, instead of causing the record or document
to be amended as aforesaid, direct the jury to find the fact or facts according to the evidence ;
and thereupon such finding shall be stated on such record or document, and notwithstand-
ing the finding on the issue joined, the said court, or the court from which the record has
issued, shall, if they shall think the said variance immaterial to the merits of the case, and
the mis-statement such as could not have prejudiced the opposite party in the conduct of
the action or defence, give judgment according to the very right and justice of the case."


be examined as a witness on behalf of the other defendants ; but if there be
any, even the slightest, evidence to charge one defendant, he cannot be ac-
quitted immediately, so as to enable him to give evidence for the others, but
the case must go altogether to the jury:(<') And the acquittal of one of
several defendants is not a matter of right, which the defendant's counsel
can claim; it being discretionary with the judge at rtisi prhis, whether he
will direct the acquittal of the defendants against whom there is no evi-
dence, at the close of the i)laintift"s case, for the purpose of making them
witnesses for the co-defendants. (/) So, in an action against several de-
fendants for goods sold, some of Avhom pleaded bankruj)tcy, and others
the general issue, the Court of Common Pleas held, that after the plain-
tift" had closed his case, and the bankrupt defendants had proved their
bankruptcy, one of them could not be admitted as a Avitness, to show a dis-
solution of the partnership ])rior to the delivery of the goods. {^) And a
defendant in trespass, Avho has suffered judgment to go by default, is not
it seems a competent witness for the other defendants in the same action,
who have pleaded, if the jury have to assess the damages against him, as
well as to try the issue as to the other defendants.(/«)[l]

(e) Peakc's Evid. 5 Ed. 148, 9. 1 Phil. Evid. 6 Ed. G8.

(/) Holt Ni. I'ri. 215, per Gihhs, Ch. J. ; and see 1 Stark. Ni. Pri. 98, 9, where Lord Elhn-
horough held, that a defendant against whom no evidence had been given before the jihiintifl'
closed his case, ought not to be acquitted, before the whole case was ready for the jury.
Ry. & Mo. 128, S. P.

{g) 7 Taunt. 599. 1 Moore, 332, S. C.

{h) 1 Car. & P. 577; but see 2 Esp. Rep. 552. 2 Campb. 333, 4, in nods. semi, contra.
1 Phil. Evid. 4 Ed. 78.

On this latter clause, where, in an action against the slieritf, for allowing a defendant to es-
cape after he had been arrested on mesne process, it was proved at the trial, tliat an oppor-
tunity only had offered itself of making the arrest, but that the sheriff liad not availed him-
self of it by arresting tlie party, tlic judge, on an application for leave to amend the declara-
tion, directed the jury to find the facts speciallj-, reserving the question of the plaintiff's right
to amend, for the opinion of the court ; Guest v. Everest, 9 Leg. Obs. 7c ; and for the decision of
the court thereon, see Geasi (or Guest) v. Elwes, 6 Nev. & M. 433. 2 Har. & W. 34, S. C. And
where, in an action on the case, against the defendants, as carriers, for negligence, it appeared
from the evidence that the defendants, if liable at all, were liable as wharfingers, upon a con-
tract to forward, and just before the jjlaintiff's counsel commenced his reply, he applied to
the judge to amend the declaration, which however the learned judge refused to do, but left
it to the jury to say whether there was a contract to forward, or a contract to carry, and
they found that there was a contract to forward, upon wiiich the judge directed the verdict
to be entered for the defendant, but the special finding to be indorsed on ihQ jmslra, tliat the
court might proceed thereon according to the above statute; the court allowed tlie amend-
ment, and granted a new trial, on payment of costs, oljserving that the learned judge might
have allowed the amendment, and postponed the trial to a future day, pursuant to ^ 23, of
that statute; Parry v. Fairhurst, 2 Cronip. M. & R. 190. 5 Tyr. Rep. C85, S. C. So, in an
action on a bill of exchange, where the defendant had omitted to state the period at which
the bill became due, and at the trial of the cause at nisi prius the judge refused to allow the
defendant to amend, and directed a nonsuit, the court set aside the nonsuit, and granted
leave to amend, on payment of costs, the defendant being allowed to plead de novo. J'ullcn
V. Sei/mour, 5 Dowl. Rep. 1G4. 12 Leg. Obs. 292, S. C. The court has no power to impose
any terms upon the party for whom judgment is ordered to be entered, under this section;
Geast (or Guest) v. Elwes, 6 Nev. & M. 433. 2 Har. & W. 34, S. C.

[1] It is sometimes deemed advisable to examine witnesses separately, and out of the hear-
ing of each other, with a view to obviate the danger of a concerted story among them, and
to prevent the intluence which the account given by one may have upon another: In such
case it is usual to order the witnesses out of court, with notice that they will not be ex-
amined if tliey remain; 1 Phil. Evid. 4 Ed. 282; and see Bac. Abr. tit. Evidence, E. 1 Stark.
Evid. 133. And either party, at any period of the cause, has a riglit to require that the un-
examined witnesses should be out of court; Southey v. Nash, 7 Car. k P. 032. 15ut the de-
fendant's attorney, who has been subpn^naed on the part of the plaintiff, may, at the desire of
bis counsel, remain in court during the trial of the cause, although an order has been made


In this manner the trial proceeds, unless the parties agree to withdraw
a juror ;(z') which is frequently done, at the recommendation of

[ *862 ] the judge, *where it is doubtful whether the action will lie; and
in such case the consequence is, that each party pays his own

costs. The withdrawing of a juror however, by consent of the parties, is

no bar to a future action for the same cause. (a)

In the progress of the trial, either party, if there be occasion, may
tender a hill of exceptions, or demur to the evidence. To understand the
nature of these proceedings, it should be observed, that in the first stage
of that process under which facts are ascertained, the judge decides whether
the evidence offered conduces to the proof of the fact which is to be ascer-
tained ; and there is an appeal from his judgment, by a bill of exceptions.
The admissibility of the evidence being established, the question how far
it conduces to the proof of the fact which is to be ascertained, is not for
the judge to decide, but for the jury exclusively; with Avhich the judges
interfere in no case, but where they have in some sort substituted them-
selves in the place of the jury in attaint^ upon motions for new trials.
When the jury have ascertained the fact, if a question arise, whether the
fact thus ascertained maintains the issue joined between the parties or in
other words, whether the law arising upon the fact (the question of law in-
volved in the issue depending upon the true state of the fact,) is in favor
of one or other of the parties, that question is for the judge to decide.
Ordinarily, he declares to the jury, what the law is upon the fact which
they find, and then they compound their verdict of the law and fact thus
ascertained. But if the party wish to withdraw from the jury the appli-
cation of the law to the fact, and all consideration of what the law is upon
the fact, he then demurs in law upon the evidence ; and the precise opera-
tion of that demurrer is, to take from the jury, and refer to the court, the
application of the law to the fact. (5) On a bill of exceptions, the case
always goes to the jury ; but, on a demurrer to evidence, it is otherwise.(c)

A bill of exceptions then is founded upon some objection in point of law,
to the opinion and direction of the court, upon a trial at bar, or of the

(i) 1 Campb. 268. 2 Campb. 442. 1 Stark. Ni. Pri. 63, 98. For the form of the postea ,

where a juror is withdrawn, see Aijpend. Chap. XXXVII. 3 37. I

(a) Ry. & Mo. 42. f

(6) 2 H. Blac. 205, 6; and see 2 Barn. & Cres. 445. 1 Car. & P. 240, (a).
(c) 1 Car. & P. 239, 40, per Park, J.; aad see id. 240, (a).

for the witnesses on both sides to withdraw ; Everett v. LowcUtam, 5 Car. & P. 91, perJBosan-
quet, J. And where a witness remains in court after an order for the witnesses to withdraw,
the judge may still allow him to be examined, subject to observation on his conduct, in dis-
obeying the order; Sex v. Colley, 1 Moody & M. 329, ^jw Litiledale, J. Parker y. J/' William,
4 Moore & P. 480. 6 Ring. 683, S. C. Eex v. Wijlde, 6 Car. & P. 380, per Parke, J. accord.
Cook V. Nethercote, Id. 741, per Alderson, B.; but see Attorney General v. Pulpit, 9 Price, 14,
contra, in Excheq. If a witness come into court, and hear some of the evidence, after the
witnesses have been ordered out of court, it is entirely in the discretion of the judge, whether
he shall be examined or not; and this is so in the Exchequer, as well as in other courts, the
only difference being that it is confined in that court to revenue cases, in which the rule is
strict, that such witnesses cannot be examined; Thomas v. David, 7 Car. & P. 350, per Cole-
ridge, J. And where the witnesses had been all ordered out of court, but one of tliem came
into court again, and heard the evidence of another witness, the witness who had so come
back into court was allowed to be examined as to such facts only as had not been spoken
to by any other witness; Beamon v. Ellice, 4 Car. & P. 585, 586, 7.


judge at nisi prius, either as to the competency of •svitnesses,(tZ) the ad-
missibility of cvidence,(?) or the legal effect of it ;(/) or for over-ruling a
challenge, or refusing a demurrer to evidence,(^) &c. In these cases it is
enacted, by the statute Westm. 2. (13 Edw. I,) c. 31, that "if the party
write the exception, and pray that the justices may put their seals to it for
a testimony, the justices shall put their seals ; and if one will not, another
shall : And if the king, on complaint made of the justices, cause the
record to come before him, and the exception be not found in
*the roll, and the party show the exception written, with the seal [ *863 ]
of the justice affixed, the justice shall be commanded that he ap-
pear at a certain day, to confess or deny his seal : and if the justice can-
not deny his seal, judgment shall be given according to the exception, as
it may be allowed or disalloAved." This statute extends to inferior courts, (a)
and to trials at bar, as well as those at nisi prius: but it has been doubted
whether the statute extends to criminal cases. (66) If a judge allow the
matter to be evidence, but not conclusive, and so refer it to tlie jury, no
bill of exceptions will lie ; as if a man produce the probate of a will, to
prove the devise of a term for years, and the judge leave it to the jury ;
because though the evidence be conclusive, yet the jury might have
hazarded an attaint if they pleased, and the proper way would have been
to have demurred to the evidence. (6'6')[a]

The bill of exceptions must be tendered at the trial ;[b] for if the party

(d) 3 Durnf. & East, 27. (e) 1 Salk. 284.

(/■) T. Raym. 404. T. Jon. 146, S. C. 1 Blac. Rep. 555. 3 Bur. 1693, S. C. Cowp. 161.
2 Blac. Rep. 929, S. C.

iff) Cro. Car. 341. 2 H. Blac. 208, 9; and see Show. P. C. 120.

(a) 2 Inst, 427.

(bb) See the cases referred to in 1 Bac. Abr. 325. Willes, 535. Bui. Ni. Pri. 316 ; and
Stat. 55 Geo. III. c. 42, § 7, as to a bill of exceptions in the jury court in Scotland.

(cc) T. Raym. 404, 5. T. Jon. 146, S. C.

[a] See note [a] post, p. 865.

[b] Any decision or declaration by the court upon the law of the case made in the pro-
gress of the cause, and by which the jury are influenced, and the counsel controlled, is con-
sidered within the scope and meaning of the term instructions, from which exceptions may
be taken, Lowerwein v. Jones^ 7 Gill & Johns. 335. But comments of a judge upon evidence
not involving any opinion or direction in matter of law, is not a proper ground of exception.
Davi.'< V. Jennc7j, 1 Met. 221. Whiton v. Old Colony Ins. Co., 2 Met. 1. Curl v. LoiveU, 19 Pick.
25. rhillips V. Ringfield, 1 App. 375. Frankfort Bank v. Johnson, 11 Shcp. 490. I)i/er\. Greene,
10 Shep. 464. The instruction must be in a matter material to the issue : Thus in a suit against
a drawer of a bill of exchange, drawn for his accommodation, the defence was that the bill
had been altered so as to be payable in sixty days, instead of six days, and the only evidence
of alteration was on the face of the bill. The judge, after instructing the jury that the
ciuestion was to be decided upon inspection, also instructed them to consider the probability
or improbability that an accommodation bill would be made payable in six days. It was
held, that no exception could be taken to the last instruction. Davis \.Jcnncy, 1 Met. 221.
And in a suit against underwriters, to recover a loss of bank bills on a policy covering a
certain amount of property on board a vessel, the judge instructed the jury, that in the ab-
sence of fraud, the amount insured had some slight tendency to prove the amount of bills on
board. Held, that this being only a remark upon the state of the evidence, was not a ground
of exception. Whiton v. Old Colony Ins. Co., 2 Met. 1. In strictness an opinion expressed
by the judge upon a question of fact on trial before a jury, is not open to exception ; but
if the party against whom it opei-ates yields to it, and does not choose to argue against the
weight of it, the court may in its discretion grant a new trial, if the opinion was incorrect.
Curl V. Loicell, 19 Pick. 25. The decision by a single judge of a question of fact, upon the
hearing of a probate appeal, may be excepted to, and may be revised by the whole court if
the judge fully reports the evidence. It is, however, discretionary with the judge, to report
the evidence or not. Stevens v. Fiske, 18 Pick. 24. The mere expression of opinion by the


then acquiesce, lie waives it, and shall not resort back to his exception, after
a verdict against him ; when perhaps, if he had stood upon his exception, the
other party had more evidence, and need not have put the cause on that
point. The statute indeed appoints no time ; but the nature and reason of
the thing require that the exception should be reduced to writing, when
taken and disallowed, like a special verdict, or demurrer to evidence ; not
that it need be drawn up in form, but the substance must be reduced to
writing, Avhile the thing is transacting, because it is to become a record. ((^)
When a bill of exceptions has been tendered, the court will not grant a
motion for a new trial, unless the bill of exceptions be abandoned.(e) And
if a partj who, at the trial of a cause, has tendered a bill of exceptions,
bring a writ of error, before he has procured the judge's signature to such
bill, he thereby waives the bill of exceptions, and will not be permitted by
the court of error, afterwards to tack or append the bill of exceptions, to
the writ of error. (/)

The bill of exceptions is either tacked to the record or not :[a] If it be

(d) 1 Salk. 288, 9.

(e) 2 Chit. Rep. 272. (/) 1 Bing. 17. 11 Price, 100, S. C.

judge in his charge to the jury upon the facts and testimony, do not furnish ground of ex-
ceptions. Gilbert v. Woodbury, 9 Shep. 246.

Where a judge instructed a jurj'^ that a count in an indictment described a substantive
offence, independently of the intent charged in it, and that, if they were not satisfied of the
intent, they should find a verdict against the defendant negativing the intention, but that if
they were satisfied that all the allegations had been proved, they should find a general ver-
dict, and the jury returned a general verdict upon the whole count, finding the intent
charged, such ruling becomes no further material, and is not the subject of exceptions.
Commonwealth v. Turner, 3 Met. 19. In Massachusetts, matters within the discretion of an
inferior tribunal are not grounds of exceptions under the statute. Comviomuealth v. Sachet,
22 Pick. 394. Feneley v. Mahoney, 2 Pick. 212. Or in New York, Jenkins v. Brown, 21 Wend,
454. Or in Vermont, Cummings v. Fullam, 13 Verm. 459. Or in Maine, Clap v. Hansom, 3
Shep. 345.

The granting or refusing amendments being within the discretion of the Court of Common
Pleas, does not furnish matter for exception. Foster \. Haines, 1 Shep. 307. Or the refusal
to postpone a cause cannot be reviewed on a bill of exception. The People v. Colt, 3 Hill, 432.

[a] a bill of exceptions must be signed by the judge who tried the cause. Law v. Jack-
son, 8 Cow. 746. Hence, where a circuit judge tried a cause, and the chief justice signed
the bill, it was considered a nullity, even after argument on errors assigned. Ibid. A paper
certified in a record transmitted on appeal, purporting to be a bill of exceptions taken at the
trial of a cause, will not be treated as such if it do not appear that the seals of the judges
below had been affixed to it. Davis v. Wilson, 2 Har. & J. 345. But exceptions taken on
the trial, for the purpose of presenting to the revision of the Supreme Court of the United
States questions of law decided by the circuit court, should not be taken in such a form as
to bring up the whole charge of the judge in which he not only states the law on the facts,
but sums up all the evidence; Cauer y. Jackson, 4 Pet. 80; Fx parte Craine, 5 Pet. 199;
Evans v. Eaton, 7 Wheat. 426 ; as such a bill thus bringing up the whole matter in con-
troversy after a trial on the general issue was held not to be admissible. Wadsicorth v.
Sanford, Kirby, 456. McDonald v. Fisher, Kirby, 339. The bill of exceptions should show
that the court below erred ; and this must be done either by stating definite law points, or
by stating the whole evidence of which the legal import is embraced in the decision ; and in
the latter case, it seems the bill must state that no other evidence was given tending to prove
the point included in the decision. Richardson v. Henison, 1 Aik. 210. Stearns v. Warner,
2 Aik. 26. Broicn v. Broivn, 7 Mis. 288. But the points relied upon as grounds for reversal
must appear from the bill of exceptions itself. Brown v. Broicn, 7 Mis. 288. Ingram v. The
State. lb. 293. The specific grounds of an objection to the introduction of evidence must
be stated. Fields v. Hu7iter, 8 Mis. 128. Unless the bill of exceptions show that all the
evidence in the case is set out therein, the presumption is that the evidence offered justified
the instructions given or the refusal to give those requested. 3Iason\. SF Campbell, 2 Pike,
506. Trott V. West, 10 Yerg. 499, S. C. 1 Meigs, 163. Wilkins v. Gilmore, 2 Humph. 140.
Perdue v. The State, 2 Humph. 494. Exceptions are fiitally defective if thej' merely show
that the judge expressed an opinion that certain evidence would be inadmissible, or insuffi-


not tacked to the record, it is necessary to set out the whole of the pro-
ceedings, previous to the trial ;((/) but otherwise, it begins with the pro-

(ff) Append. Chap. XXXVII. § 59.

cient without showing that the evidence was offered and rejected, or received and ruled
to be insuffuient. Patlen v. Jfunneicell, 1 Greenl. 19. VaKscy. Smith, C Cranch, 233, note.
The judfrment below will be presumed to be right and will be aflirnu-d, unless the
recoril show error ; or, if the exceptions are so defectively drawn that it cannot be ascer-
tained whether there were error or not. Adams v. Jillis, 1 Aik. 24. Eaton v. JJoiilon, 1 Aik.
380. In some states, as in Virginia, more liberality is allowed, as there, if the bill states a
case imperfectly the cause will be remanded for a new trial. Brook v. Yotmg, 3 Rand. 106.
llanston v. Cole, 1 Rand. 461. Thompson v. Cumming, 1 Leigh, 322. Raines v. rhillips, 1
Leigh, 483. Barnes v. Blackislon, 2 Ilur. & J. 376. Keath v. Fatton, 2 Stew. 38. But it is
not necessary to state all the evidence. AHen v. Booker, 2 Stew. 21.

If a motion for a new trial, on the ground that the verdict is contrary to evidence, be over-
ruled, a bill of exceptions to the court's opinion ought not to state all the evidence given
in to the jury, but only the facts appearing to the court to have been proved. Bennett v.
Ilardaway, 6'Munf. 125.

As a general rule, the court will presume the evidence was sufficient to warrant the ver-
dict, unless the party excepting shows that all the evidence is in the bill. Kingsleij v. State
Bank, 3 Yerg. 107. But there is an exception to the rule where a point of law is raised on
the construction and effect of an instrument, and the court are satisfied from the facts that
no other evidence was relied on. Ibid. If parol evidence admitted to explain a deed be ex-
cepted to, the bill must state the evidence, so that the court above can decide whether it was
admissible. Gatewood v. Barrus, 3 Call. 194. S. P. King v. Kenny, ^ Ham. 79. M'Gougal
V Flemniing, lb. 388. And the burden is on the party who excepts to show in his bill what
the evidence was, or the exception to it will be considered as waived. Snotcden v. Warder,
3 Rawle, 101. The whole evidence should be shown in the bill, if it be necessary in order
to the decision, that the court should see the whole. Hodges v. Crutcher, 1 J. J. Marsh,
504. Gall v. Pierson, 6 Mis. 253. Cawthorn r. Muldrow, 8 lb. 617. The bill must also
distinctly show wherein the party may have been prejudiced by the decision excepted
to; for the court is not bound to give an opinion on an abstract question of law not
belonging or not shown by the bill to belong to the cause. 3FDoitgal v. Flemming, 4
Ham. 588. King x. Kenny, 4 Ham. 79. llnmiUon v. Itussel, 1 Cranch, 318. Osburn v.
State, 7 Ham. Part 1st, 214. ^Slhon v. Jackson, Minor, 399. Miles v. Myers, Walker,
379. Slilhen y. State, 14 Ohio, 586. Watson v. Brown, lb. 473. Under the Pennsylvania
statute of 1806, a judge is not bound to reduce his whole charge to writing and tile it of
record ; it is sufficient if he file his opinion on all points of law on which he was prayed to
file it. Beigart v. EUmaker, 14 S. & R. 121. Mundcrbach v. Lutz, 14 S. & R. 125. Neither
is he bound to return his notes of the evidence given on the trial, lb. Basslcr v. Neisly, 1
S. & R. 431. But it seems that it would be his duty, if requested, to allow the necessary
evidence to be put on record, though a bill of exceptions be not tendered. But such request
should be made immediately on the delivery of the opinion, and the statement of the evidence
should be prepared by counsel and exhiliited to the judge as in a bill of exceptions. Doicn-
ing v. Baldwin, 1 S. & R. 298. Bossier v. Keisly, 1 S. & R. 431. The judge is not bound
to furnish his own notes for this purpose, though the party excepting offer to coi)y the evi-
dence at his own expense. Munderbach v. Lutz, 14 S. & R! 125. "When an opinion is filed

Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 25 of 111)