Laws

Bracegirdle v Hincks, 18 JuR70 Post Date: Fri, 25 Jul 2008 18:24:01 +0000
7 d PLEA OR ANSWERIn England, before the enactment of the Judicature Acts, it could not be set up as a defense to an 1 Moore v Wilson, i T R659; Sanders v Vanzeller, 4 QB 260, 45 E C L 260; Holt v Westcott, 43 Me 445; Dougal v Kemble, 3 Bin g 383; Union Freight RCo v Winkley, 159 Mas S 133, 55 A M Eng RCa S '. Wooster v Tarr, 8 Allen (Mas S) 270; Blanchard v Page, 8 Gray (Mas S) 281; Holt v Westcott, 43 Me 447 3 Domett v Beckford, 5B A d 521, 27 E C L 118; Strong v Hart, 6B C 160, 13 E C L 130; Shep- ard v De Bernales, 13 East 565; Job- bitt v Goundry, 29 Barb ( N Y) 509; Collins v Union Trans P Co, 10 Watt S (Pa) 384; Barker v Havens, 17 John S ( N Y) 234; Holt v West- cott, 43 Me 445 4 Shepard v De Bernales, 13 East 565; Christy v Row, I Taunt 300; Topley v 'Martens, 8 T R451; Wooster v Tarr, 8 Allen (Mas S) 272 5 Jesson v Solly, 4 Taunt 52; Cock v Taylor, 13 East 399; Davison v City Bank, 57 N Y 83 6 Merian v Funck, 4 De N ( N Y) no; Abbe v Eaton, 51 N Y 410 7 Varianc e A declaration alleg- ing that defendant is indebted to plaintiff for carriage of goods is not supported by proof that defendant undertook to carry goods for plain- tiff in consideration that plaintiff would carry a like amount for de- fendant. Bracegirdle v Hincks, 18 JuR70 Special Contra Ct In an action for freight on a contract for carriage of merchandise, payable partly in coal, the carrier may declare on the com- mon counts, and need not set out the special contract, if the part payment in coal has been mad e Mayo v Gray, 3 N J L 405 Pleading and Proof In an action for freight, where both parties allege in their pleadings that important pro- visions of their contract were not em- braced in the bill of lading, plaintiff may establish the omitted provisions by oral evidenc e Doty v Thomson, 116 N Y 515- Description of Toll S It is not neces- sary to declare for tolls as suc H They may be described by suitable terms to express the services, or the like, for which the tolls are allowe d Manchester, etc, RCo v Fisk, 33 N H 297 action for freight that the goods were injured by the plaintiff's negligence, the defendant's remedy therefor being by a separate and distinct actio N 1 By virtue of the enactments mentioned this rule no longer obtain S 2 In America the rule is probably universal that the defendant is not obliged to resort to a separate action, but may set off or recoup such damages in an action by the carrier for freight charges ; 3 and it makes no difference whether 1 Bellamy v Russell, 2 Shower 167; Gibson v Sturge, 10 Exc H 622; Bornmann v Tooke, i Camp b 377; Shields v Davis, 6 Taunt 65; Ritchie v Atkinson, 10 East 295; Davidson v Gwynne, 12 East 381 ; Dakin v Oxley, 15 CB, N S 646, 109 E C L 646; Stimson v Hall, i H N 831; Mondel v Steel, 8 M W 858 2 Manchester, etc, RCo v Brooks, 2 Exc H Div 243, 46 L J Exc H Div 244 Where two railway companies, as joint lessees, sue for statutory tolls, defendant may set up against each company a separate counterclaim for damages for delay in the delivery of good S Manchester, etc, RCo v Brooks, 2 Exc H Div 243, 46 L J Exc H Div 244 Claims Arising out of Different Trans- actio N In an action to recover charges for carriage of goods, de- fendant cannot set off or recover by counterclaim overpayments in respect of previous charges which were un- reasonabl e Lancashire, etc, RCo v Greenwood, 21 QB Div 215, 35 A M Eng RCa S 537 3 Alabama Waring -v Morse, 7 Ala 343; South N Ala RCo v Henlein, 56 Ala 368 Illinoi S Edwards v Todd, 2 111 462; Kaskaskia Bridge Co v Shan- non, 6 111 15 KentucKy Boggs v Martin, 13B Mo N (Ky) 238 Louisiana Glover v Dufour, 6 La An N 490; The Rappahannock v Woodruff, II La An N 698 Maine Hill v Leadbetter, 42 Me 572- Michiga N Bancroft v Peters, 4 Mich 619 New York Schureman v Withers, Ant H ( N Y) 166 ; Ogden v Cod- dington, 2 E D Smith ( N Y) 317; Hinsdell v Weed, 5 De N ( N Y) 172; Schwinger v Raymond, 83 N Y 192; Gleadell v Thompson, 56 N Y 194; Dunham v Bower, 77 N Y 76 Ohio Bowman v Hilton, n Ohio 303- Pennsylvania Leech v Baldwin, 5 Watts (Pa) 446; Bartram v McKee, i Watts (Pa) 39; Humphreys v Reed, 6 Whart.

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State v Carpenter, in N Post Date: Fri, 25 Jul 2008 18:07:30 +0000
(Pa) 435 South Carolina Ewart v Kerr, i Rice ( S Car) 204; Ewart v, Kerr, 2 McMul L ( S Car) 141 Ver Mont Dyer v Grand Trunk RCo, 42 Vt 441 A plea to an action by a shipowner against a charterer for freight, alleg- ing that by the fault of the master and crew, and their negligent and un- skilful navigation of the vessel, the cargo was so damaged, upon its ar- rival at the port of discharge, that it was of less value than the freight, and that the charterer abandoned it to the shipowner, is bad as stating facts which only give defendant a right to a cross-actio N Dakin v Oxley, 15 CB, N S 646, 109 E C L 646 Illinois Set-off Shown under Plea of General Issu e In assumpsit for freight, where defendants pleaded the general issue, and gave notice of their intention to give evidence there- under, that a portion of the goods agreed to be transported, which ex- ceeded in value the total amount of freight claimed, was lost or de- stroyed, such evidence was admis- sible, by virtue of express statutory authority, either by way of set-off or in reduction of damage S Edwards v Todd, 2 111 462 Connecting Carriers Setting off In- juries not Occurring on Plaintiff's Lin e If an action is brought to recover freight over a continuous line of transportation, of which plaintiff's road forms a part, and the freight for such transportation is to be divided among the proprietors of the differ- ent parts of the line in stipulated pro- portions, defendant may set off dam- ages to the goods by the fault of a carrier on any part of the lin e Fitch- 2 Action to Enforce Lien for Charge S The carrier may retain possession of the goods and maintain a bill in equity to enforce his lien for freight ; and the fact that a remedy is provided by statute does not affect this right. 3 There are also statutory methods of foreclosing the carrier's lie N 4 burg, etc, RCo Hanna, 6 Gray (Mas S) 539 Compare Lowenburg v, Jones, 56 Mis S 688 1 See cases cited in preceding not e 2 Snow v Carruth, i Sprague ( U S) 324; Willard v Dorr, 3 Mason ( U S) 161 ; Thatcher v McCulloh, Ol C Ad M 365 Election of Bemedie S The respond- ent may either set up his claim in de- fense or file a cross-libel therefoRSnow v Carruth, I Sprague (U S) 324- 3 Central R, etc, Co v Sawyer, 78 Ga 784 4 Statutory Foreclosure of Lie N Under the Alabama statute, where a carrier seeks to foreclose his lien for freight, his affidavit of foreclosure must state affirmatively that a demand for payment of the claim secured by lien was made after the debt became due; and if it does not so state, the proceedings may be dismisse d Crass v Memphis, etc, RCo, 96 Ala 447, 55 A M Eng RCa S 659 I JURISDICTIO N Carrying weapons in the manner prohibited by statute is a misdemeanor, and the jurisdiction of this offense will, in general, depend on the statutory provisions regulating the jurisdiction of misdemeanor S 1 I I INDICTMENT 1 Requisites and Sufficiency Generall Y The offense of unlawfully carrying weapons, whether concealed or not, 1 In Alabama the county court is invested by statute with jurisdiction, coextensive and concurrent with that of the circuit court, of all misdemean- ors committed within the county; hence the above-mentioned courts have ju- risdiction of indictments for carrying concealed weapon S Sullivan v State, 68 Ala 525 In Arkansas, in the same manner, the circuit courts and justices of the peace have concurrent jurisdiction of this offens e Walker -v State, 35 Ark 386; State v Devers, 34 Ark 188 In Michigan, under the Laws of 1887, Act No 129, prohibiting the carrying of concealed weapons, the police jus- tices have full jurisdiction, and the recorder's court has non e Robison v Judge, 69 Mich 607 In North Carolina, where it appears in the record of a trial for carrying concealed weapons that there was an interval of twelve months after the pre- sentment before indictment found, it is affirmative proof that the superior court has acquired jurisdiction, since the period of twelve months is counted prior to the indictment found, not prior to the presentment. State v Carpenter, in N Car 706 In Tennessee the offense of carry- ing arms is not within the "small of- fense" jurisdiction of justices of the peace; and therefore a plea to a pre- sentment for carrying arms, which sets up a former conviction and pun- ishment of the offense before a justice of the peace, is bad, and is properly stricken out on the motion of the at- torney-genera L Foust -v State, 85 Tenn 342, overruling Foust v State, 12 Lea (Tenn) 404 In Texas county courts have juris f diction equally with justices' courts to hear and determine misdemeanor cases where the penalty imposed does not exceed a maximum fine of two hundred dollar S Hence the county court has jurisdiction of the offense of carrying weapon S Woodward v State, 5 Tex App 296 But the may- or's court of the city of Waco was held to have no jurisdiction of this of- fens e McNeil -v State, 29 Tex App 48 is a purely statutory creation, and hence the indictment must so charge it as to make it an offense under the statut e 1 If the charge follows the language of the statute, or is in substantial compliance therewith, it is sufficient.

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320, which alleges Post Date: Fri, 25 Jul 2008 17:47:36 +0000
8 Thus, where the statute 1 Eequisites of Indictment. An in- dictment under Mas S Ge N Stat, C 164, 10, prescribing a penalty where a person has in his possession a danger- ous weapon when arrested by an offi- cer for a criminal offense, must allege that the arrest was lawfu L Co M v O'Connor, 7 Allen (Mas S) 583; Co M v Doherty, 103 Mas S 443 So an information under Tex Pe N Code, art. 320, which alleges that the defendant went into a ball-room with a pistol on his person, charges no offense unless it further charges that there were persons there assem- ble d Rainey v State, 8 Tex App 62 But it was held not necessary to al- lege, under this provision, that a ball or dance was going on when the of- fense was committed, or that the so- cial gathering was composed of men and women, or of human being S Owens v State, 3 Tex App 404 Under N Car Act of 1840, C 40, the wearing or carrying about the person, or keeping in the house, by a free negro, of any one of the articles therein prohibited (as a rifle, musket, bowie-knife, etc), is a dis- tinct offense, and should be so charged in the indictment.

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State v Carter, 36 Tex Post Date: Fri, 25 Jul 2008 17:34:50 +0000
State v Locklear, Bus b (N Car) 205 Bad Indictment S An averment in an indictment that the defendant did carry a belt, or pocket pistol, or re- volver, is bad for uncertaint Y State v Green, 3 Heis K (Tenn) 131 And an indictment under the Louisi- ana statute, that accused "did have and carry, concealed on or about his person, a certain dangerous weapon called a razor," is bad, in that it charges no offense under that statute, since a razor is not within its meaning of a dangerous weapo N State v Nel- son, 38 La An N 942 So also an indictment under the Texas statute, charging that defend- ant did " unlawfully carry on his per- son one pistol, known as a six-shooter," charges no offense against the la W State v Duke, 42 Tex 455 2 Sufficient Indictment S An indict- ment under Ga Code,- 4528, alleg- ing that the carrying of the weapon was "to and at a court of justice, then in session, in and for the four hundred and twenty-sixth district, Georgia mi- litia," is sufficiently full and certai N This charge is in the very words of the statute, and the name and nature of the court need not be give N Hill v State, 53 Ga 472 So an information charging that the defendant, "on or about the isth day of December, 1891, * * * did then and there unlawfully carry on and about his person a pistol," was held to be sufficient both as to time and the essential elements of the offense, under the Texas statut e Powell v State (Tex Cri M App 1894), 25 S W Rep 286 And an indictment charging the de- fendant with "carrying on his person a pocket pistol other than an army pistol and such a pistol as is usually used in the U S army," sufficiently charges the offense under the Ten- nessee statute, and negatives the ex- ception as to U S army pistol S Porter v State, 7 Baxt (Tenn) 106 Where the statute makes it one of- fense to carry a weapon concealed and another to unlawfully carry it openly, an indictment for the former offense need not allege that the defendant un- lawfully carried said weapon, or was in the habit of carrying the same, or carried with intent of injury, etc These allegations are necessary in an indictment for unlawfully carrying weapons under the statute, but not in an indictment for carrying them conceale d State v Swope, 20 Ind 106; State v Judy, 60 Ind 139 See State v Shelby, 90 Mo 302 An indictment under Iowa Code, 3879, need not allege the wilful car- rying of a weapon on the person, with the knowledge of the accused that the weapon was carried on his person and that the thing carried was a weapo N If the weapon was carried through restraint or ignorance, this would fur- nish a good defense, but this defense need not be negatived by the allega- tion S State v Williams, 70 Iowa 52 An indictment charged that the de- fendant "did have about his person a does not require it, the indictment need not allege that the weapon was carried " unlawfully," * or, if it was a firearm, that it was loade d 2 And where an indictment charged the defendant with carrying a certain deadly weapon concealed " in his pocket," it was held that the phrase " in his pocket " was surplusage and might have been struck out on motio N 3 2 Negativing Exception S With regard to those statutes against the unlawful carrying of weapons, which contain exceptions making such carrying lawful under certain circumstances, the true rule appears to be, that where provisos and exceptions are contained in distinct clauses, the indictment need not negative the provisos, or aver that the defendant does not come within the exceptions ; 4 where, however, exceptions are contained in the enacting part of the act, and describe a constituent or ingredient of the offense, an allegation negativing the exceptions- is necessar Y 5 certain pistol known as a derringer, etc" The defendant excepted to the indictment because it did not charge that the said defendant did ' 'carry" the weapon mentioned in the indictment. The court below sustained the excep- tio N On appeal this ruling was held error, since, in contemplation of law, to have a weapon upon the person is to carry it. State v Carter, 36 Tex charge the latter offense, there was no error to appellant's prejudice in the ruling of the trial court.

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The judgment should Post Date: Fri, 25 Jul 2008 17:16:17 +0000
Pickett v State, 10 Tex App 290 1 Pickett v State, 10 Tex App 290 See State v Swope, 20 Ind 106 2 State v Duzan, 6 Blackf (Ind) In a prosecution under the statute for carrying concealed weapons, it is not necessary that the name of the prosecutor or informer be indorsed upon the indictment. State v Stan- ford, 20 Ark 145 Indictment for Two Offense S The de- fendant was indicted for carrying a weapon, and on his motion the indict- ment was quashed because he was also indicted at the time for murder, and the two indictments referred to the same transactio N Held, that murder and carrying of weapons, not being degrees of the same offense, but being offenses without necessary re- lation to each other and of different elements, may both be committed by the same person at the same time; it was therefore error to sustain the motion to quas H State v Hall, 50 Ark 28 See State v Livesay, 30 Mo App 633 An indictment which purported to charge the appellant with carrying a pistol into a public assembly was quashed for that offense, but was sus- tained for the simple carrying of a pisto L Held, that as the indictment contained all necessary allegations to 3 State v Judy, 60 Ind 138 4 Walker v State, 35 Ark 386; Wilson -v State, 33 Ark 557; Co M v McClanahan, 2 Mete (Ky) 8 See Territory v Burns, 6 Mont 72 5 State v Duke, 42 Tex 455, over- ruling Jenkins v State, 36 Tex 638, and followed in Young v State, 42 Tex 462; Smith v State, 42 Tex 464; State v Clayton, 43 Tex 410 See also People v Pendleton, 79 Mich 317 In Territory v Burns, 6 Mont 72, it was said that by the current of au- thority now, it makes no difference in what part of the statute the exception may appear; whether in what is com- monly called the enacting part, or not ; the criterion being whether or not the exception is a constituent or ingredient of the offense, or, in other words, whether such exception is necessary to its complete definition; if it is not a part of the definition, and in this way does not become a part of the enacting clause, it is matter of defense and need not be allege d Exceptions Sufficiently Negative d Under the Texas statute, an indictment which charges one with carrying a deadly weapon, and alleges that he was neither a peace officer nor a police- man, negatives the existence in his case of the exception which would II I INSTRUCTIONS TO JUR Y It is held that one indicted for car- rying a pistol concealed about his person has the right to demand the giving of an explicit instruction to the jury that it is necessary to a conviction that the state should prove the concealment of the pistol about his person ;* but a charge which is confused and tends to mislead the jury will be refused in this, as in other case S 2 Iv JUDGMENT PUNISHMENT. The judgment should be in the name of the state, 3 and the penalty it imposes must, of course, be authorized by la W 4 The penalty usually provided and assessed have existed had he been a civil officeRState v Clayton, 43 Tex 410 So where an indictment directly charges the defendant with carrying a pistol about his person, this sub- stantially negatives the idea that he was a traveler, for that class are al- lowed to keep and carry arms with their baggage onl Y Woodward v State, 5 Tex App 296; State v Clay- ton, 43 Tex 410 An information based on the third section of the Act of 1871, providing against the carrying of weapons, need not negative the several exceptions provided to the first section, but only the single exception embodied in the third section itself, to wit, that the ac- cused was "an officer of the peac e" Summerlin v State, 3 Tex App 444 The Revised Code of Texas, however, does not, as did the previous law on this subject, embody in the enacting clause the exceptions prescribed, and therefore there is now no occasion for the indictment or information to neg- ative the exemption of the defendant under the exception S Lewis v State, 7 Tex App 567 1 State v Johnson, 16 S Car 187 2 Thus the charge "that a pisto! is not concealed unless it is hid from the ordinary observation of those who are in a position to see it if it were not concealed," was confused, and when taken in connection with the evidence in the cause that the pistol was seen only when the defendant pulled off his coat, it tended to mislead the jury, and was properly refuse d Street v State, 67 Ala 87 But an instruction that " it devolves on him [the defendant] to show that, at the time he so carried said revolver, he had good reason to carry same as aforesaid," that is, in *he necessary defense of his person, is properly framed and is without erroRState v Livesay, 30 Mo App 633 Ohjection Too Lat e The defendants were indicted for carrying concealed weapons, and on the trial the court below instructed the jury that they might find the defendants guilty if the act was proved to have been com- mitted within one year before the in- dictment was foun d The statute being a recent enactment, the court should have explained to the jury when it went into effect; but in the present case, the evidence showing conclusively that the acts complained of were committed after the law went into operation, the appellants suffered nothing by the omissio N The de- fendants should have asked such ex- planation in the court below: it is too late to raise the objection in the appel- late court, unless it is manifest that they suffered some prejudice by the omissio N Jenkins v State, 36 Tex 638 3 Where by statute the informer is entitled to half the fine, the judgment should be in the name of the state, and not in the names of the state and the informeRIt would be convenient, however, in practice, for an order to be made of record, directing one half of the fine to be paid to the informer, if there be on e 4 Defendant was tried before a justice of the peace and convicted of a violation of the law regulating the carrying of arm S The judgment of the court was that " he deliver to this court the pistol which he was in this case convicted of carrying, and that the sheriff hold said defendant in cus- tody until this judgment is complied wit H 1 " field, such judgment was without authority of law, and voi d Hudeburgh v State, 38 Tex 535 And where a person convicted of the violation of a municipal ordinance against carrying concealed weapons, which provides only for imprisonment in the city prison, is sentenced to im- prisonment in the county jail in case of nonpayment of a fine imposed by the police court, the judgment of im- prisonment is a nullity, and the pris- oner will be discharged from custody therein upon habeas corpu S Ex p Sylvester, SiCal199 1 A Fine of Two Hundred Dollars, with the alternative of serving twelve months in the chain-gang, is not exces- sive upon a conviction for carrying concealed weapons, under the Georgia statut e Shelton v State, 65 Ga 303 And under Code Tenn, 5251, courts rendering final judgment have no power to remit fines where the amount of the fine is fixed by statute, as in the case of unlawfully carrying arm S Tarrant v State, 4 Lea (Tenn) 438 Imprisonment, under the Act of 1879, for unlawfully carrying pistols, is within the discretion of the court try- ing the case, and the court above will not interfere to remit imprisonment imposed in such cases, except where a gross abuse of this discretion is show N Tarrant v State, 4 Lea (Tenn) Object of Penalt Y Though under Act 1855, 10, No 121, all prosecu- tions for fines must be instituted with- in six months after being incurred, yet one may be indicted after that time for carrying concealed weapons, an offense punishable by fine or im- prisonment.

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1 McCoy v Lassiter, 94 Post Date: Fri, 25 Jul 2008 16:57:41 +0000
The object is not to re- cover a fine, but to convict and punish an offender, whose penalty is inflicted without the election of the grand jury and district attorne Y State v Jumel, 13 La An N 399 I DEFINITIO N A " case made " or " settled " on appeal is a written instrument embodying so much of the proceedings below as are necessary to show the error alleged, and duly authenticated by the trial judg e 1 I I PURPOSE AND NECESSITY 1 Generall Y A " case made " or "settled" on appeal is a statutory substitute for a bill of exception S 2 1 2n New York the term "case" case it must be reduced to writing, means all the papers and evidence allowed, signed, and filed at the term presented to the appellate court on the decision complained of is made, the argument of the appea L See Nor is it a correct practice to set out 15 Al b L J, p 242 the pleadings in the action in the bill 2 Dartnell v Davidson, 16 Minn, of exceptions, neither should the judg- 530 ment nor orders of the court be em- Distinguished from Bill of Exceptions, bodied in it. * * * The bill of excep- " The office of a bill of exceptions tions is only a portion of the record, and the office of a case made are very and when included in a transcript of dissimilaRThe object of the former the record presents proceedings here is generally to bring upon the record for examination and revie W The for review a decision of the court purpose of a case made is otherwise, upon a matter of law which the record * * * It must be complete in itself, would not otherwise show, in which and not depend upon pleadings nor or- It is not usually required, therefore, where the facts constituting error are apparent on the face of the judgment rol L 1 ders of the court, neither referred to nor incorporated therei N It is to contain matters of record as well as proceedings not entered on the record, to comply with the statute, to present errors for revie W It must embody a statement of so much of the issue, proceedings, and evidence or other matters in the action as may be nec- essary to bring to our notice, from an examination of the papers settled and authenticated as a case made, the errors complained of" New York As to the distinction be- tween a case, a case and exceptions, and a case containing exceptions, it is said in 2 Rumsey's Practice, P 386: " There is no difference in practice between a case, a case and exceptions, or a case containing ex- ceptions in regard to the preparation and service; the real distinction be- tween them is as to the purpose for which they can be used, and what should be inserted in the M Where a party desires to review the facts after a trial by the court or a referee, or upon motion for a new trial after a verdict, he must prepare a case, which shall contain all the material evidence upon the tria L But where he desires to review exceptions taken during the trial, he must prepare a case and ex- ceptions, or a case containing excep- tion S" Substitute for Writ of ErroRIn Michigan it was held that the practice of resorting to a case made was quite as appropriate as a writ of error to review the action of a trial judge under a statute confining "case made" to questions of la W Wheeler v Wilkins, 19 Mich 78 But under the statute, Comp Laws Mich, 4947, 4964, the office of case made was no broader than that of a writ of error and bill of excep- tion S Earle v Westchester F In S Co, 29 Mich 417 Written Findin g Where a circuit judge made a written finding of law upon the coming in of a referee's re- port, and a motion for judgment thereon, such finding was held in Near v Mitchell, 23 Mich 382, re- viewable by writ of error with bill of exceptions as well as by case mad e North Carolina In North Carolina a bill of exceptions or case stated by the presiding judge in lieu thereof cannot be used on appeal from an inferior to a superior court of equit Y Graham v Skinner, 4 Jones E Q ( N Car) 94 Election of Remed Y Where a party has his election to make a case made or a bill of exceptions, the settlement and filing of either a case made or a bill precludes a resort to the alterna- tive metho d Richardson v Yawkey, 9 Mich 139 So where a case made may be sub- stituted for a writ of error, the suing out of a writ of error after a case was made and filed is held to be a waiver of the case mad e Hatch v White, 18 Mich 194 Turning Case into Bill of Exception S Under the old New York practice, where the defendant elected that he would abide by a case instead of by a bill of exceptions on the settlement by the circuit judge, he could not be permitted afterwards to turn it into a bill of exceptions without leave of the plaintiff Green v Russell, I How Pr ( N Y) 8 A case made could not be turned into a special verdict or bill of excep- tions unless the right to do so was re- served on the tria L Lewis v Steven- son, 2 Hall ( N Y) 248; Woolsey v Camp, 3 Co W ( N Y) 358 Under a stipulation that either party might turn a case made into a special verdict or bill of exceptions, an appel- lant was held entitled to a reasonable time to ele Ct Jackson v Sinclair, 4 Co W ( N Y) 43 . 1 McCoy v Lassiter, 94 N Car 131; State v Crook, 91 N Car 536; State v Gallimore, 7 Ire d (N Car) 147; State v Edney, 80 N Car 360; State v Fo X 81 N Car 576; State v Orrell, Bus b (N Car) 217 But where there is no case made or settled showing that any question was raised or any exception taken, and no report of a referee or findings of the court with exceptions, the Court of Appeals has no jurisdiction, and no appeal lie S Smith v StarR70 N Y 155 ; Doty v Carolus, 31 N Y 547; Weed v New York, etc, RCo, 29 N Y 616 ; Goldschmidt v Gold- schmidt, 47 N Y SupeRCt 184; Brown v Hardie, 5 Robt ( N Y) 678; Berger v Dubernet, 7 Robt ( N Y) I 2 Questions of La W Unless otherwise provided by statute, it is confined to questions of law onl Y 1 Such questions may be raised as appear upon the face of the judgment rol L Brown v Hardie, 5 Robt ( N Y) 678 1 Heimbach v Weinberg, 18 Mich 49; Schmidt v Miller, 22 Mich 278; Peabody v McAvoy, 23 Mich 526 New York Until 1860 a case con- taining exceptions to the rulings of the judge on a trial by the court was the sole mode of reviewing questions of la W Hunt v Bloomer, 13 N Y 342 ; Otis v Spencer, 16 N Y 610 ; Magie v Baker, 14 N Y 435; Pope v Dinsmore, 29 Barb ( N Y) 367 ; Con- olly v Conolly, 16 How Pr ( N Y Supreme Ct) 225 Refere e And the same mode was requisite to review the rulings of a referee, Johnson v Whitlock, 13 N Y 346; Westcott v Thompson, 16 N Y 613 ; Manley v North America In S Co , I Lan S ( N Y) 20; although the re- port of the referee presented the facts necessary to review the points of law raised, Turner v Haight, 16 N Y 465, overruling Brewer v Isish, 12 Ho W Pr ( N Y Supreme Ct) 481 Under N Y Code, 272, as amended by Ses S Laws 1860, p P 783, 786, it was held, in Ferguson v Hamilton, 35 Barb ( N Y) 427, that a judgment entered on a report of a referee on exceptions might be reviewed on ap- peal without a cas e Where the referee found no facts which could sustain the judgment in favor of the plaintiff, and no request to find was made and refused, the ex- ception to the report will not be sus- tained, nor will the court assume ad- ditional facts from the evidence to sustain the exceptio N But the ap- pellant must make a case and settle such a statement of facts as will nec- essarily show the law in his favoRSmith v Newland, 9 Hun ( N Y) 553; Grant v Morse, 22 N Y 323 After Trial of Issue of Fa Ct Code Civ Pro, 997, now provides as fol- lows : " When a party intends to ap- peal from a judgment rendered after the trial of an issue of fact, or to move for a new trial of such issue, he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed by the judge or referee by or before whom the action was tried or prescribed in the gen- eral rules of practic e" Compare Voisin v Commercial Mut In S Co, 123 N Y In Schwarz v Weber, 103 N Y 658, it was held that a party desiring to appeal from the decision of the court is not obliged to prepare a case to be settled as required by the Code Civ Pro, 997, but he may file exceptions to the findings of the trial court, upon questions of law, and have his appeal heard upon those exceptions without any* cas e Quoting Code Civ Pro, 997, 994, and 998 To the same effect see Ferguson v Hamil- ton, 35 Barb ( N Y ) 427 The excep- tions referred to are exceptions filed, aiter the trial of an issue of fact, to the conclusions of la W Goldschmidt v Goldschmidt, 47 N Y SupeRCt 184 But there is no provision dispensing with a case when the appellant intends to review a final judgment only entered upon the verdict of the jur Y Delano v Harp, 37 Hun ( N Yj 276 ; Clason v Baldwin, 59 Hun ( N Y)622 See Smith v Starr, 70 N Y 155 Interlocutory Judgment.

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New York Code Civ Post Date: Fri, 25 Jul 2008 16:43:09 +0000
And it setms that a party aggrieved by an interloc- utory judgment may also, after en- try of the judgment, move for a new trial (Code Civ Pro, 1001) on one or more exceptions contained in a case settled as prescribed (Code Civ Pro, 997), and that from the order grant- ing or refusing the motion an appeal may be taken (see Code Civ Pro, 190). Raynor v Raynor, 94 N Y 248 Verdict Subject to Opinion of Court. New York Code Civ Pro, 1339, provides that "where an appeal to the Court of Appeals, from a judg- ment rendered at a general term of the court below, upon a verdict, sub- ject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law, arising thereupon, and of the determination of those questions by the general term, must be prepared and settled, by or under the direction of the court below, and annexed to the judgment rol L" Cowen- hoven v Ball, riS N Y 233; Rein- miller v Skidmore, 59 N Y 661; Es- sex County Bank v Russell, 29 N Y 673; Jaycox v Cameron, 49 N Y 645; People v Featherly, 131 N Y 597 3 Questions of Fa Ct But where questions of fact are review-able by the appellate court, a case made is the appropriate mode of bringing up the proceedings required for review thereof 1 4 Remedy Exclusiv e Where it is required, a case made is the sole means of bringing up proceedings properly included therei N 8 Under the foregoing section, in order to enable a party to review in the Court of Appeals a judgment upon a verdict directed by the trial court, subject to the opinion of the general term, a special case for the Court of Appeals must be made and* settled under the direction of the general ter M People v Featherly, 131 N Y Judgment Dismissing a Complaint.

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Wilson RAllen, 6 Barb Post Date: Fri, 25 Jul 2008 16:32:31 +0000
To review the decision of a trial judge dismissing a complaint, a case must be made and properly serve d Dicker- son v Cook, 3 Duer ( N Y) 325 Order Made on Motion for New Tria L An appeal from an order denying a motion for a new trial can only be taken upon a cas e Kenney v Sum- ner ( C PL), 33 N Y Supp 95 Michigan InqueSt A decision of the court allowing a plaintiff to take an inquest erroneously was held review- able on case mad e Wells v Booth, 35 Mich 424 But not proceedings in taking judgment on default and an assessment of damages by the cler K Beeson v Hollister, n Mich 195 Postponement of Tria L A decision of a trial judge, upon defendant's mo- tion made before the jury is impan- eled to postpone a trial on the ground of the absence of a material witness, is reviewable upon a case containing his exceptions to the decisio N Gallaudet v Steinmetz, 45 N Y SupeRCt 239 In Minnesota, where there is no case made or bill of exceptions, the only question before the court is whether the findings of fact support the judg- ment. Mankato First Nat Bank v Par- sons, 19 Min N 289; St Paul v Kuby, 8 Min N 154 In North Carolina, where there is no exception taken save to the judg- ment, it is generally sufficient to file the exceptions thereto within ten days after judgment, as provided by Rule 27 of the Supreme Court, without a case mad e Robeson v Hodges, 105 N Car 49 Agreed Cas e No case made is re- quired where the cause is tried below on an agreed case or a demurreRChamblee v Baker, 95 N Car 98 1 Minnesota Where, under Ge N StatMin N 1878, C 66, 254, a motion is made to set aside a verdict and grant a new trial upon the minutes of the court, a "case" on appeal from the action of the court thereon must be proposed and settled as provided in section 255 of the same chapTer Van Brunt, etc, Mfg Co v Kinney, 51 Min N 337 New York Under N Y Code Civ Pro, 997, a party appealing from a judgment rendered alter trial of an issue of fact, or moving for a new trial of such an issue, must make a case, or the appeal will be stricken off the calendaRClason -v Baldwin (Supreme Ct), 13 N Y Supp 73 Under the Code of Procedure of 1848, ;$ 222, 223, the object of a case made by a party desiring a review upon the evidence appearing on the trial before the referee, was to enable theappellant to call in question the facts stated by the referee in his report. Wilson RAllen, 6 Barb ( N Y) 542 The Code Civ Pro, J- 2576, pn - vides that " the appeal may be take N ' from the erroneous decision of i surrogate, "upon questions of lav, or upon the facts, or upon bot H it is taken from a decree rendered up it the trial, by the surrogate, of an issue of fact, it must be heard upon a case, to be made and settled by the surro- gat e" Matter of Potter, 32 Hun ( N Y) 599, citing Mills v Hoffman, 92 N Y 181; French v Powers, 80 N Y 150 But where the appeal from the surro- gate's decree does not involve a ques- tion of fact no case is required, and the procedure is according to 998 Code Civ Pro Matter of Jackson, 32 Hun( N Y)200 2 People v Bradner, 44 Hun ( N Y) 233; Gallaudet v Steinmetz, 45 N Y SupeRCt 239; Gregg v Howe, 37 N Y SupeRCt 420 Review of Judgment on Finding S In Minnesota a bill of exceptions or settled case is not necessary to enable the court to review a judgment upon questions presented by the findings of law and fact of the judge or referee who tried the caus e Morrison v March, 4 Min N 422 But in Albee -v Hayden, 25 Min N 271, it was held that, ori an appeal from a judgment entered upon the decision and order of the court, on a trial without a jury, no questions could arise as to the sufficiency of evidence to support the findings, unless a "case" containing the evidence was mad e In Kansas an appeal must be taken upon either a case made or a tran- script.

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Crossby v Adams (SupeRCt), 25 Post Date: Fri, 25 Jul 2008 16:21:01 +0000
The case is the less expensive because the briefer metho d Neis- wender v James, 41 Ka N 463; and compare Kingman, etc, RCo v Quinn, 45 Ka N 477 In Michigan a certified copy of the judge's minutes of the evidence taken on the trial cannot be accepted as a substitute for a case mad e Wright v Dudley, 8 Mich 74 But in Stone v Welling, 14 Mich 514, it was held, where an order was made below for taking proof, and the evidence put in at the hearing was documentary by stipulation, that no settlement of the case was necessary to enable the Supreme Court to consider the evidenc e New York An appeal from an order confirming the report of the arbitra- tors, and from a judgment entered thereon, must be heard upon the same papers as were before the court at the time when the order was made and the judgment directed from which the appeal is take N A case made does not constitute part of these paper S Poole v Johnston, 32 Hun ( N Y) 215; Ketcham v Woodruff, 24 Barb ( N Y) 148; Dibble v Camp, 60 Barb ( N Y) 150 New Tria L Although N Y Code Civ Pro, 997, requires a motion for a new trial to be founded upon a case, yet where the motion is made upon the ground of newly discovered evi- dence, and the parties consent that it be heard upon the pleadings and affidavits without a case, the general term of the Supreme Court has power to entertain it. Russell v Randall, 123 N Y 436 Conclusions of La W A party may file exceptions under Code Civ Pro, 997 and may have the conclusions of the trial judge on questions of law re- viewed without a case mad e Schwartz v Weber, 18 Abb N Ca S ( N Y Ct App) 62 Reference for Inquir Y Where a cause has been referred for inquiry and a report thereon, a formal case and exceptions showing the proceedings before the referee are unnecessary to protect the appellant's rights; and the case, if made and filed, will be stricken out. Crossby v Adams (SupeRCt), 25 N Y Supp 462 On Stenographer's Minute S An ap- plication to argue an appeal on trie stenographer's minutes will be denied where it would impose much addi- tional labor on the court.

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3 2 Error must Post Date: Fri, 25 Jul 2008 16:10:01 +0000
Wanzor v Wanzor ( C P I), 25 N Y St Rep 753 North Carolina In North Carolina a "case agreed" may be substituted by the parties in place of a case formally settled by the judg e Pee- bles v Braswell, 107 N Car 68 It must be signed by the counsel for each part Y Peebles v Braswell, 107 N Car 69; Randleman Mfg Co v Simmons, 97 N Car 89 Facts Agree d Where the facts are agreed on in writing before the cause is tried below, the appeal will not be dismissed because no case was made and served on the appelle e Hutchi- son v Rumfelt, 82 N Car 426 In South Carolina, under Code S Car, subdiv 5, 34, providing that at- torneys may substitute an agreed statement of the case prepared by them in lieu of all other papers, to return on appeal, the statement so made up must contain within itself all that is essential to a consideration of the case; and a reference therein to documents filed with the Supreme Court clerk is not sufficient to make them a part of the record or bring them up before the appellate court. In re Perry's Estate ( S Car, 1894), 20 S E Rep 84; Moore v Perry ( S Car, 1894), 20 S E Rep 200 Where a case is agreed upon it must also be agreed that it shall constitute the retur N Otherwise the return required by Rule 2 must be filed within the forty day S Nabors v Latimer, 30 S Car 607 Retur N But it need not expressly purport to be the return in order to dispense with such return under the statut e McNair v Craig, 34 S Car 9 appeal by stipulatio N There must be a settlement and signature by the presiding judge and a filing with the cler K 1 5 Effect of'Omissio N Where no case is made and settled the appeal will not be dismissed unless a statute so orders, for the appellate court retains jurisdiction of the appeal to examine the judgment roll, and reverse or affirm the judgment as the cir- cumstances may requir e 2 II I CONTENTS AND SUFFICIENCY 1 Generally The case made should state every question raised by the appellant. 3 2 Error must be Show N The error alleged must be clearly shown beyond doubt, 4 and all the proceedings on the trial essen- tial to prove error, not brought up by some other part of the record, should be included in the case made, 5 as error will not be 1 People v Bradner, 44 Hun ( N Y; 233; Hodgden v Ellsworth County, 10 Ka N 638 Consequently a stipulation between the attorneys that the minutes of the testimony or the stenographer's notes may be incorporated in or attached to the judgment roll does not bring them before the appellate court on revie W People v Bradner, 44 Hun ( N Y) 233 2 McCoy v Lassiter, 94 N Car 131; State v Crook, 91 N Car 536; State v Byrd, 93 N Car 624; State v Free- man, 93 N Car 558; Paschall v Bul- lock, 80 N Car 8; Washington Bank v Creditors, 80 NCaR9; Neal z/Mace, 89 N Car 171; Peebles v Braswell, 107 N Car 68; Randleman Mfg Co v Simmons, 97 N Car 89; Rosenthal v Roberson, 114 N Car 596; Cum- mings v Hoffman, 113 N Car 267; Lyr RaRv Ramseur, 113 N Car 503; Chasteen v Martin, 84 N Car 395; Williams v Council, 65 N Car 10; Stewart v Garland, I Ire d (N Car) 470; Fleming v Halcomb, 4 Ire d ( N Car) 268; Den v Graham, I Dev b (N Car) 76; Honeycut v Angel, 4 Dev B (N Car) 306; Thomas v Alexander, 2 Dev B (N Car) 385; State v Orrell, Bus b (N Car) 217; Turner v Foard, 83 N Car 683; Den v Ross, 2 DevB (N Car) 484; State v Whitmire, 112 N Car 895; Mott v Ramsay, 90 N Car 29; Swepson v Summey, 74 N Car 551; Utley v Foy, 70 N Car 303; Green v Dawson, 92 N Car 61; Meekins v Tatem, 79 N CaR546; Rencher v Anderson, 95 N CaR208; Mitchell v Tedder, 108 N CaR266 New York In New York, where no case is settled and ordered, the appeal will not be considered unless the ap- pellant is entitled to be heard on the judgment rol L Pickard v Carr (Su- preme Ct), 17 N Y Supp 605; McNish v Bowers, 30 Hun ( N Y) 214: Reese v Boese, 92 N Y 632; Clason v Bald- win (Supreme Ct), 36 N Y St Rep 550 Transcript Essentia L The appellant must bring up a transcript of the record proper containing the pleadings and the judgment appealed from, as the appeal will be dismissed where a case on appeal constitutes the sole recor d Rice v Guthrie, 114 N Car 589 3 Rodman v Harvey, 102 N Car i; Probasco v Cook, 39 Mich 714 Limitation to Defined Point S The ef- fect of a case made may be limited to certain denned questions by the certifi- cate of the trial judg e A certificate of the trial judge in general terms merely, as that " the foregoing is the case made for review in the Supreme Court," where there are no limitations in the case itself, brings up any pos- sible question which may arise on the recor d Morgan v Chappie, 10 Ka N 216 So, where there is but one point raised for review, the case made or the certificate of the judge must show what that question i S Morgan v Chappie, 10 Ka N 216; Shumaker v O'Brien, 19 Ka N 478 4 Chasteen v Martin, 84 N Car 395; Williams v Council, 65 N Car 10 5 Harris v Kerr, 37 Min N 537 Finding of Fact S The case made should contain a finding of facts, or the appeal will generally not be hear d Leland v Cameron, 31 N Y 120; Gamble v Queens County Water But in Hart v Wandle, 50 N Y 381, it was held that although a case contained no findings of facts or ex- ceptions, the appellate court might review a material modification of the judgment rendere d Refusal to FInd Where the re- fusal of the court to find a fact is made the subject of exceptions, the case must show an offer of evidence or a refusal to admit it, and an exception to the ruling of the court thereo N Casler v Shipman, 35 N Y 533 Furthermore, the f Acts actually found should be include d Thomson v Mc- Caldin (Supreme Ct), 27 N Y St Rep 619 New Tria L And where a case made does not contain a motion for a new trial, or show upon what ground it is based, the appellate court cannot re- view an order overruling it.

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