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copy of them must be served upon the attorney of the moving party, within such period.
On receiving the amendments, the latter, if he disagree thereto, may, within four days afterwards, serve his opponent with notice to appear before the justice who tried the cause, and set. tle the case and amendments. This notice must not be for less than four, or more than twenty days after service, and the exact time must be distinctly specified upon its face. Although the appointment must be so made, it is, in practice, rarely attended by the parties. The course more usually pursued, is to leave the case and amendments with the judge, who settles it at his leisure. For this purpose, before leaving the papers with him, they should be revised, and his attention distinctly drawn to the different amendments, by notes in the margin, showing, in particular, which of those amendments are disputed, and, if so, on what grounds. In ordinary cases, this mode of proceeding will answer all purposes ; but if the amendments be of such a nature as to render an actual argument upon them advisable, or if the judges decision thereon be unsatisfactory to either party, it is competent for them to discuss the matter personally before him, and to obtain his deliberate settlement upon argument regularly had. In this case, the appointment originally made for settlement may either be actually attended, or a fresh meeting may be arranged for that purpose.
Under section 268, peculiar provision is made with respect to the settlement of a case, on review of the decision on trial by the court, to the following effect, that, under such circumstances, the judge must " briefly specify the facts found by him, and his conclusions of law.” This provision is a necessary consequence of the alteration of the law in respect of the review of these decisions effected by the recent amendments, under which that review is obtainable in all cases, by appeal only, and not by means of a motion for a new trial, even though sought in respect of alleged errors of fact. The same holds good as to a case for the review of a report of referees, under the analogous provisions of sec. 272.
By Rule 16, the periods above mentioned are made positively imperative, unless extended by special order.
The right, whether to make a case on the one hand, or to propose amendments on the other, will, accordingly, be gone, unless such proceedings be taken in due time; and if, in like manner, the
notice to appear before the justice to settle the case and amendments, be not served within the four days limited, the right to object to those amendments will be lost, and they will be made as of course.
In Doty v. Brown, 3 How. 375, 2 C. R. 3, it was considered that the time for these purposes could not be extended, otherwise than by special motion. In Thompson v. Blanchard, however, 3 How. 399, 1 C. R. 105, it was held that such time might be indefinitely extended by the judge who tried the cause ; and, in Huff v. Bennett, 2 Sandf. S. C. R. 703, 2 C. R. 139, this principle was extended to an order made by any judge. Such order will not, however, operate as a stay in other respects, if for a longer period than the twenty days prescribed by sections 401 and 105.
The case having been thus settled, the amendments made by the judge should be brought to the notice of the opposite party, and an opportunity given him to amend his copy. This having been done, a fair copy thereof, as finally settled, must be made, and be filed in the office of the clerk of the court, within, at the latest, ten days from the time it has been finally settled by the judge.
This done, the matter will be ready for argument in all cases. Where a review is sought in respect of a decision of the court, on a trial without a jury, or on one by referees, the proceeding assumes, from this period, the form of a regular appeal under sec. 348, and must be so carried on: the
settled as above, being annexed to, and forming part of the judgment record, precisely as with reference to exceptions taken in the ordinary form.
Where, however, a review is sought in respect of the decision of a jury on similar questions, the case must be set down on the Special Term Calendar, and noticed for trial in due course. It takes its place on that calendar, and comes on in the same manner as a cause, although in strictness a motion. No
a papers are necessary to be prepared for the hearing, but the moving party must see that the original case is brought into court, and ready for the judge's use, at the time the matter is
The argument proceeds as usual ; and, if a new trial be granted, it is, of course, competent to the adverse party to suggest, and to the court to impose conditions, where proper.
The above observations apply to a case seeking a review on
matters of fact alone. If, however, the review sought be of a mixed nature, and errors of law are also complained of, the case may now be made out accordingly; or if, for the purposes of an appeal, it be desirable to separate the questions of fact to be reviewed at the special term, and the questions of law to be reviewed on exceptions, that separation may now be made under the direction of the court or of a judge. The provision being entirely new, the practice remains to be settled; but it will doubtless be assimilated to that on the original preparation of a case or exceptions, and the same line of proceeding may accordingly be followed, until the point be determined by express decision.
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v. McKinley, 3 C. R. 10, this disposition was acted upon, though the general principle on which the stricter cases are grounded, was fully admitted; and, in Hammond v. Hazard, 10 L. O. 56, the liberal view of the subject was still further extended. The last amendment seems now to remove all difficulty on the subject, for the future.
The principle that a motion for a new trial, on other grounds than those of irregularity or newly-discovered evidence, cannot be made after judgment entered, is also strictly laid down in Hastings v. McKinley, above cited. The same conclusion is come to in Enos v. Thomas, 5 How. 361; 1 C. R. (N. S.) 67.
A motion for a new trial on the ground last mentioned, may, it was held in Mersereau v. Pearsall, 6 How. 293, be made after judgment entered, and even after that judgment has been af firmed on appeal; but, if the grounds of that motion were known to the parties at the time such appeal was argued, without any steps being taken, the motion will be denied; nor will the application be granted, at that period, on a mere allegation that a witness was mistaken or surprised on his examination.
Although a motion for a new trial may be grounded on alleged irregularity or surprise as regards the evidence, it will
not be entertained on any alleged miscarriage on the part of the judge. The decision of the latter can only be corrected, on a case or bill of exceptions in the usual form.-Craig v. Fanning, 6 How. 336; Wilcox v. Bennett, 10 L. O. 30.
Where exceptions had been actually taken in good faith at the trial, with a view of insisting upon them at bar, and in the appellate court, if necessary; but the formal leave to turn the case into a bill of exceptions, as requisite under the Code of 1849, had been inadvertently omitted, leave was given to cure the formal defect by amendment.-Oakley v. Aspinwall, 1 Sandf. S. C. R. 694. The granting of such leave is, however, a matter resting entirely in the discretion of the court.
The practice of preparing and settling a case for review of a referee's decision is, under Rule 24, the same as that above prescribed," as far as the same is applicable." The only dif ference seems to be that, under these circumstances, the case is settled, not by a judge, but by the referee or referees.—See amendments in sec. 272, expressly conferring this power. The case itself on the one hand, and the amendments on the other, should be prepared and served, and notice for settlement given, and acted upon in precisely the same manner, and at precisely the same periods. Any extension of time, however, or stay of proceedings, can only be obtained from the court; the referees have no power to grant either.
In the superior court a special practice is prescribed under these circumstances, by Rule 13, and the party applying for a review, must procure and furnish to the court a special report of the referee or referees, setting forth distinctly the facts found on the reference, and his or their decision upon the points of law arising in the cause.
In the same Rules, the practice on motions for a new trial upon a case, where that proceeding is applicable, is laid down with much greater detail than in those of the supreme court. By Rule No. 9, if the review be sought in respect of alleged errors of law as well as of fact, the former must be presented upon the case as well as the latter; which, in the event of the application for a new trial being denied, may afterwards be turned into a bill of exceptions, if such errors have been otherwise duly excepted to; and it would seem that this will be done as of course, in accordance with the principles laid down. in Huff v. Bennett, before cited.
The case, so settled as above, must be heard at special term; but such alleged errors of law will not be considered on that hearing, unless by the express direction of the justice before whom the cause was tried. Rule 10. Where, therefore, it is considered expedient that the exceptions on the law, as well as the review on the facts, should be considered on the same occasion, this direction should be applied for at the time the case is presented for settlement. In cases where the questions of law are, as it were, subsidiary to those of fact, this course will be highly convenient; where, on the contrary, those questions arise in the shape of abstract propositions, it seems inexpedient ; as the decision on the case, if a new trial be granted, may possibly render their consideration unnecessary. Indeed, under the latter circumstances, the direction of the judge may probably be denied.
By Rule 11, of the same court, it is expressly provided, that the order at special term granting or refusing a new trial, may be appealed from in the same manner; and that, in case of a refusal, the appeal from such order may be heard at the same time as the appeal from the original judgment, in respect of errors of law, if such errors exist, and exceptions have been duly taken; and, by Rule 12, the costs under these circumstances are specially provided for as follows, viz., that in ordinary cases, both are to be treated as one appeal, but that the court may, in its discretion, give the usual costs of a motion upon the appeal from the order, if thought expedient, in addition to those upon that from the judgment. The former should, therefore, be asked for, on all occasions, at the time that the decision is delivered ; or, if the parties be not in attendance, then afterwards, prior to the settlement of the costs.
The above practice must accordingly be pursued in the court in question, and appears to be, in all main respects, consonant with the recent amendments of the code, so far as regards the review on questions of fact tried by a jury. In these cases it may, therefore, be a convenient precedent to follow, as respects proceedings in the other tribunals also. To judgments entered as the result of a trial by the court, or by referees, this mode of proceeding is, however, no longer applicable under the recent amendments; an appeal to the general term being now the proper remedy in those cases.
In all the courts, an appeal may be taken from the decision of