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the special term upon a case, whatever that decision may be, in the ordinary form of an appeal from an order. Under the Code of 1851, that appeal might even be carried up to the court of appeals—(see, however, Moore v. Westervelt, 1 C. R. (N. S.) 415)—by the last amendment the former practice is restored, and this is no longer feasible. If, on the contrary, a new trial be granted, and the decision be acquiesced in, the cause is, as it were, remitted back to the stage of the original joinder of issue, and must be brought on a second time for trial, in regular form and in due course. The only difference between the second trial and the first, will be the clearer views which the parties will have, as to what will, or will not be considered as admissible, either in point of evidence or of argument. If the decision on the motion have been in writing, it may be made use of for this purpose, and the judge may probably require a copy for his information, which should be in readiness accordingly. The date of the issue on the second trial will be that of the original joinder, without regard to the subsequent proceedings, and the cause will accordingly take a higher place on the calendar, and come on at an earlier period.

If the party who has applied for and obtained a new trial, neglect to proceed, it is competent for his adversary to do so, and set down the cause in due order in the usual manner.Gale v. Hoysradt, 3 How. 47.

Where a new trial is granted on the defendant's application, it will, however, be necessary for him to serve a copy of the order on the plaintiff, before he can be in a situation to move to dismiss the latter's complaint for not proceeding to trial. But, where the new trial has been granted on the plaintiff's application, the contrary is the case.—Robb v. Jewell, 6 How. 276.

If a new trial be granted on the facts, of course the exceptions taken upon the original hearing are no longer of any practical operation. If, however, the application be refused, the case will proceed on those exceptions, which must be brought on in due course.

The above observations all proceed upon the assumption that a stay of proceedings is obtained, and that the case on which a new trial is sought, is made and brought to a hearing before the entry of judgment, according to the more usual practice. A neglect on this point, or a refusal on the part of the court to grant such a stay, will not, however, prejudice the appealing

party. Even under the Code of 1849, which was silent upon the subject, it was held that a case, so made, might be attached to the judgment roll after the entry of judgment.–V. Renouil v. Harris, 2 Sandf. S. C. R. 641 ; 1 C. R. 125; 2 C. R. 71 ; Lynde v. Cowenhoven, 4 How. 327. The present amendment in sec. 265 gives express authority for this purpose. See also Schenectady & Saratoga Plank Road Co. v. Thatcher, 6 How. 226.

If the new trial be sought on points of law only, the verdict of the jury on the facts as brought before them not being impeached, the course then to be pursued is the preparation and settlement of exceptions. As regards the stay to be obtained, the formalities as to the preparation of this document, the service of a copy, the preparation and service by the opposite party of his amendments thereto, the notice of appointment for the settlement of the bill of exceptions, by the judge who tried the cause, and the proceedings consequent on that settlement as regards the opportunity to be given to the adverse party to amend his papers, the settlement of any questions arising on the amendments by actual argument before the judge, where necessary, and the making a fair copy for signature when finally settled, the practice with regard to exceptions, is precisely the same as that before laid down in relation to a case, without any distinction whatever, and, therefore, a repetition of the directions before given on those subjects would be superfluous.

In the original framing of the document, however, an essential difference exists, which will now be adverted to. A case for review on the facts, in general contains a full statement of all that actually transpired upon the trial, or, at least, of all material circumstances, as forming grounds for the verdict of the jury, or the decision of the court or referees. Exceptions, when separately prepared, and, under the recent amendments, the case on an appeal from the decision of the court or referees, are, on the contrary, documents of a much more restricted nature, and every statement of fact, not directly bearing upon the questions to be submitted to the court above, and absolutely necessary for presenting those questions in a proper shape, should be rigorously excluded. The practice on the preparation of a special verdict being, in this respect, identically the same, the cases on both will be cited in connection.

The requisites, on the preparation of a bill of exceptions, previous to the last amendment, are thus stated by the court of appeals, in Price v. Powell, 3 Comst. 322. A bill of exceptions should give a plain and concise statement of the facts, out of which the questions of law arise, and the evidence should not be set forth in detached and scattered parcels. If loosely prepared, every doubt about facts should be turned against the party making the bill.

The application of these principles is still more stringent in the case of a special verdict, which is to contain facts only, and not the evidence of facts, so as to present questions of law only to the appellate court.-Hill v. Covell, 1 Comst. 522 ; Sisson v. Barrett, 2 Comst. 406 ; Langley v. Warner, 3 Comst. 327. See also the same principle, with regard to the review of a referee's report on questions of law alone, in Sturgis v. Merry, 3 How. 418, before cited.

In Walrod v. Ball, 9 Barb. S. C. R. 271, it was held that an opinion expressed by a judge upon an hypothetical case put by counsel, cannot be made the foundation of an exception.

In order to sustain exceptions, it is actually necessary that the objections on which a review is sought, should have been formally raised, upon the actual trial when by jury, or in due time after the decision of the court, or referee, has been pronounced, where the trial has taken place in that form. Where, however, this has been done, the right to make a case embodying those exceptions in due time afterwards, is fully saved, and no formal order of the court is necessary.–See Huff v. Bennett, 2 Sandf. S.C. R. 703, 2 C. R. 139, above cited.

Where, on the contrary, the objections have not been raised on the hearing, so as to enable the opposite party to supply, if possible, the alleged defect, such objections will not, as a general rule, be available on the motion for a new trial.-Merritt v. Seaman, 6 Barb. S. C. R. 330 ; New York and Erie Railroad Company v. Cook, 2 Sandf. S.C. R. 732. See, also, Carley v. Wilkins, 6 Barb. S. C. R. 557. A certain class of objections to the jurisdiction may, however, be taken at any time.-V. ante under the head of demurrer, in relation to persons privileged from suit in the state courts.

The exceptions, or the case on appeal from the court or referees, prepared according to the above rules, must contain a sufficient statement of facts, to present clearly and lucidly the exact state of circumstances under which the principles of law apply, the ruling on which on the trial, is sought to be impeached. To this extent, the parties may be entitled to state the evidence or the charge of the judge, exactly as it was given or delivered; all beyond this is superfluous, and, if objected to, will be struck out, and indeed, the judge possesses a full discretion on the subject, whether the objection be or be not formally taken. The document must be disincumbered of statements of fact, as far as possible, so as to present the points of law on which the decision is sought to be reviewed, in the purest possible shape. See the express provision to this effect in relation to the review of a decisioa of the court, as now inserted in sec. 268.

It is, of course, competent for the adverse party, if dissatisfied with the judge's settlement of either the case or exceptions, to move the court that it be resettled, on affidavits showing what took place, and the errors committed on the settlement.

Such a motion will, however, be rarely advisable, as a very strong case indeed must be made out, before the court will interfere with a matter so purely in the discretion of the judge, and on which he is of necessity so much more thoroughly informed, than can be the case with respect to any other judicial officer.

When the exceptions are finally settled, and the alterations have been brought to the notice of the adverse party, to give him, if required, the opportunity of applying for a resettlement, as before remarked, they must be fairly copied out and filed with the clerk. Under the last amendment, it is no longer necessary, that they should be signed and sealed by the judge, as heretofore, under the provision at 2 R. S. 422, sec. 75.

When the exceptions, or the case upon appeal, have been settled and copied out as above, they must, under the provisions of rule 19, be filed forth with, and within ten days at the furthest, in the office of the clerk of the court, and notice of such filing should be given to the opposite party. Any stay by wbich such party may have been restrained from proceeding to enter up his judgment, will thereupon be at an end, and he will be entitled to proceed to do so in due course.

The decision of the questions raised on the exceptions or case as above, will then come on in due form, in the shape of an appeal to the general term; as to which, see hereafter. The party excepting should, accordingly, address himself before-hand to the ques. tion of the security which it will be necessary for him to give upon the appeal so taken. If he feels he can depend upon his


opponent's courtesy, to give him reasonable time to perfect that security after the actual entry of judgment, no further order will be required. If, on the contrary, the case be conducted in a hostile spirit, application should be made for a further stay, suspending the issuing of execution on the judgment, when signed, for a limited period, in order to give time for the due perfection of the appeal. This application, as in the former instance, should, in all cases, be made to the judge who tried the cause, and has settled the bill of exceptions, though, as before shown, it may be made to any other, in case of necessity, the facts being shown by affidavit, which otherwise is not requisite. The order may be obtained ex parte, and must, of course, be duly served. If not obtained before judgment is actually signed, the opposite party will be entitled to issue execution, immediately upon the entry of such judgment, without regard to the losing party's intention to appeal ; and he may do so, even if such appeal have actually been taken, unless the necessary security have been given. See hereafter, under the head of Appeals.

The old practice as to a demurrer to the evidence, appears to be entirely abolished, or, to speak more correctly, superseded by the review upon exceptions in the manner above prescribed.




The proceedings to be taken on the part of the losing party, before the actual entry of judgment, with a view to obtain the revision of the decision of the court, jury, or referees, on questions of fact, or to place exceptions on the record, with the view of obtaining a similar revision on points of law, by appeal, having thus been considered: the intermediate proceedings that are, or may be, necessary on the part of the prevailing party, remain to be dealt with, before passing on to the actual entry of judgment and its consequences, the subject of the next book.

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