SANGER a. VAIL

SANGER a. VAIL. Supreme Court; Newburgh Special Term, October, 1856. Trial.—Noting Exceptions. On the trial of a cause, the defendant objected to the competency of a witness offered by plaintiff, and the objection was considered and overruled, but no exception, if any was taken, was noted in the judge’s minutes. JBeld, on settlement of a case made by defendant on appeal—1. That it was not necessary in order to entitle him to review the ruling of the court, that he should procure the exception to be formally noted in the minutes. 2. That the affirmative testimony of witnesses that an exception was actually taken, would outweigh the negative testimony of an equal number who testified that they were present at the trial, and that no exception was taken. Settlement of a case upon appeal. This was an action upon a note. On the trial the plaintiff offered a witness to prove the handwriting of the maker of the note. The witness was objected to by the defendant; but the objection was overruled by the court, and the witness received. Judgment being rendered in favor of the plaintiff, the defendant appealed; and served a case upon appeal, setting forth, that an exception was taken on his behalf, on the trial, to the ruling of the court admitting the witness. The plaintiff served several amendments to the case, one of which proposed to strike out the statement that such exception was taken. The case now came before the court for settlement, and affidavits were read upon both sides of the question whether the defendant’s counsel did or did not except, as stated in their case. M. L. Cobb, for defendant. J. M. Martin, for the plaintiff. —I. No exception was taken. This appears—1. By affidavits. 2. By the clerk’s minutes. 3. By the minutes of counsel for defendant. 4. By the minutes of counsel for plaintiff. 5. By the fact that defendant’s counsel relied solely for success on the weight of their testimony, and did not think they needed exceptions. II. If an exception was taken, it was verbal, and cannot be used in a bill of exceptions. 1. Because it was not so stated as to be understood by the court or the opposite counsel (Daniels a. Patterson, 3 Comst., 47, 51; Jackson a. Hably, 20 Johns., 362; 1 Paine & D. Pr., 535). 2. Because it was not rendered in writing at the time of taking it (2 Rev. Stats., 4 ed., 669, § 74; Shepherd a. White, 3 Comst., 32 ; 1 Paine & D. Pr., 532, and cases cited; 10 Johns., 312; Code, § 265; 2 Dunb. Pr., 642, 643). III. If an objection was made and overruled, it is of no avail unless followed by an exception (Bichols a. Dusenbury, 2 Comst., 283; Ward a. Ward, 2 N. J. R., 699; Geauga Iron Company a. Street, 19 Ohio, 300; Gessy a. Bountree, 2 Chase, [Wis.] R. 28). IV. The right of a party to review evidence on exception depends on his taking a clear, distinct, well-defined exception in writing at the trial; and if he neglects to do it in any particular, the court has no power to relieve him (Kimball a. Irish, 26 Wend. B., 444). [MAJORITY — Brown, J.] Brown, J. —At the trial of this action before the late Mr. Justice Rockwell, the defendant objected to the admissibility of Daniel W. Townsend, a witness examined by the plaintiff in regard to the handwriting of the defendant to the note which was the subject of the action. The court heard and considered, and finally overruled the objection and received the evidence. The defendant in his proposed case asserts that he excepted to this ruling of the judge, and he supports his assertion by the positive affirmative testimony of five witnesses, two of whom were the counsel employed in the trial of the action. The plaintiff admits that objection was made to the reception of the evidence; that it was considered and overruled, but denies that any exception was taken to the ruling of the judge, and he supports his view of the occurrence by the testimony of five witnesses, two of whom are the counsel who tried the cause for the plaintiff. Thus we have a conflict of evidence upon a single point. This is not like an exception taken to a single proposition or a series of propositions in the charge of a judge to a jury. Nor is it like an exception taken to evidence offered and rejected. In both these instances the exception is requisite to signify the dissent of the party taking the exception; and in the case of a charge to a jury it is also requisite to point the judge’s attention to the particular proposition excepted to, in order that he have an opportunity to reconsider and perhaps correct what he has said. The case of a party who objects to the admission of evidence offered by his adversary and has his objection overruled, stands upon different ground. His objection signifies his dissent to the admission of the evidence in the strongest possible terms, and it also brings the court to notice and adjudicate upon the identical point presented by the objection. The entry of an exception after this upon the judge’s minutes, may be the more formal and critical mode of proceeding; but it answers no useful purpose and contributes nothing towards the attainment of justice, and its omission prejudices no one. For these reasons my uniform practice at the circuit is to note an exception to the charge, and also to evidence offered and rejected; but I remember no instance where I have entered an exception where an objection to the admission of evidence has been overruled. I uniformly regard the objection as covering the whole ground, and entitling the party making it to the full benefit of it, in order to review the question decided upon appeal or on a motion for a new trial. I attach no sort of consequence to the fact that this entry is not noted in the minutes of Mr. Justice Rockwell. Had I been trying the cause I should not have made any note of it; but I should nevertheless have given the objecting party the full benefit of it. The evidence procured on the part of the defendant to show the exception was taken is positive and affirmative, and according to the well-known rule, is of more weight than that of the plaintiff, which is merely negative'. Both kinds are consistent with each other, for it may very well be that the exception was taken, and in the hurry and excitement of the trial may not have been noticed, or if noticed, may have been forgotten by some of those who were present. I am satisfied, from a consideration of the circumstances, that the defendant’s counsel meant in good faith to resist the introduction of the evidence to which they objected ; and if they inadvertently omitted upon the trial to do all that might, upon strict practice, entitle them to the full benefit of their objection, I should still think the case should be so made up as to enable them to review the question of the admissibility of the evidence of the witness Townsend upon appeal or motion for a new trial. The preponderance of the evidence, however, is in favor of the case made by the defendant in regard to the particular exception. The plaintiff’s second amendment to the proposed case is disallowed From this order, or from so much thereof as allowed the alleged exception of the defendant Vail to the testimony of the witness Townsend to be inserted in the case, the plaintiff appealed. The appeal was heard at the general term, held at Brooklyn, in January, 1867, before Strong, Birdseye, and Emott, JJ. The order appealed from was affirmed with costs.