Shipherd and Storrs against White; Campbell against Schult

Shipherd and Storrs against White. Campbell against Schult. Exceptions to a judge’s or Court’s opinion should be noted down upon the trial, or they cannot be used in a bjll of exceptions. On settling the bill, notice pf time and place when pnd where this js to be done, should he given to the defendant in error ,¡ Otherwise the judge or cptirt will not be compelled, by mandamus, to execute the bill. And if executed, it will be set aside. Whenever a bill of exceptions is signed, under Circumstances wherein the supreme court X«M>uld npt cpmppl its exeputipn by mandamus, it will be set aside on motioi}. These causes liad been tried in the Common Pleas of Washington county—the first ip December term, 1819—the second in August term, 1820—and immediately removed, by writ of error, to this Court, In the first cause, file decision was so late in term that the attorney for Shipherd fy Storrs had no time to reduce a bill of exceptions to writing, though they mentioned their exceptions on the trial; but on thq intimation of one or more of the Judges, that this would be ' ■ ' sufficient, he drew and took the bill with him at the next term, and gave it to While?a attorney for inspection, with a request that he would amend it, so that the draft and amend-: merits might be submitted together. He requested time to look at his minutes, which he said he had not with him, promised to amend the bill the first opportunity, and retained it for that purpose. He was repeatedly solicited to propose amendments, which he omitted to do, and ruled the plaintiffs to assign errors while he had possession of the draft. In neither of the causes were the exceptions reduced to writing on the trial, and both bills were finally settled and signed by three of the Judges, after they had gone out of office, and without giving any notice of the time and place of their being so settled to the attorneys of White and Schult respectively. An issue of in nullo est erratum, having been joined, and th.e causes noticed for argument at this term, R. Weston, moved fo strike them from the calendar, or that the bill of, exceptions be set aside. J. L. Wendell, contra. Curia. If the plaintiffs were pressed for time to assign errors, they should have obtained a Judge’s order to extend jt, till the bills could have been fairly settled. The defendants in error should, at least, have had notice of the time and place when and where the bills would have been submitted to the Judges for their sanction. This should always be so ; more especially qt such a distance of time from the trial. We would not have compelled the Judges, by mandamus, to seal the bills, without such notice ; and when bill? of exception are signed under sue!] circumstances as would not call for our interference by mandamus, we will, on application, set them aside, as improvidently executed, This rule is applicable here upon another ground : In neither of these causes were the exceptions reduced to writing upon the trial, or during the term. (Midberry v. Collins, 9 John. 345.) D, Russell, for the plaintiffs in error, submitted whether the Court would not refer the hills to the Judges of the Court below, for revision. Curia. The plaintiffs in error were irregular in the out set. The exceptions should have been noted down upon the trial. Their remedy by hill of exceptions is gone. Russell. Will not the Court allow the plaintiffs to discontinue without costs ? They have gone on in perfect good faith. Curia. We see no reason for this. It was palpably irregular to proceed and settle the bills without the least notice of the time and place at which this was to have been done, When the Court will compel the Judges to sign by mandamus, vid. Sikes v. Ransom, 6 John. Rep. 279. Midberry v. Collins, 9 John. 345. Lanuse v. Barker, 10 id. 312. Pratt v. Malcom, 13 id. 320. [MAJORITY] Motion granted.