Laws

2 1 Daniell C H Post Date: Wed, 30 Jul 2008 9:01:37 +0000
Such was the opinion of the court in Exchange Bank v Morrall, i6 W Va 546, where, however, the question was left un- decide d In Virginia Bank v Ward, 6 Munf ( Va) 166, there does not appear to have been any offer of indemnity in the bill; nor in Farmers' Bank v Reynolds, 4 Ran d ( Va) 186 In East India Co v Boddam, 9 Ve S JR464, which was a bill setting up a lost bond, it appears that the plaintiff offered in his bill such indemnity as the court might dire Ct So in Tercese v Geray, Finch 301, and Mossop v Eadon, 16 Ve S JR430 Bill for Relief against Forfeitur e Where a party seeks the aid of the court against a forfeiture which grows out of the nonpayment of money within a fixed time, he must show that he has since tendered payment of the amount with interest; and if the tender was not accepted, he must aver in his bill that he is now ready and willing to pay the mone Y Beecher v Beecher, 43 Con N 557, where, ' however, the plaintiff was allowed to amend the defe Ct Bill to Set Aside Tax Sal e In Gage v Pumpelly, 115 U S 454, originally a proceeding in equity in the U S Circuit Court to set aside a tax sale in Illinois as illegal, it was held that the plaintiff should offer to reimburse to the purchaser all taxes paid by the latter, both those for which the property might have been legally sold and those paid after the sal e Formal Sufficiency of OffeRIn a bill which seeks the rescission of a con- tract on the ground of fraud, an offer in the bill to credit the defendant, on settlement before the court of the matters embraced in the contract, with the amount received by the plaintiff under the contract, or "to perform and abide by the order of the court in the premises," is a sufficient offer to do equit Y Martin v Martin, 35 Ala 560 See also Miller v Louisville, etc, RCo, 83 Ala 274; Hartley v Matthews, 96 Ala 224 Offers in Bills to Eedee M See article REDEMPTIO N Offers in Bills for Specific Performanc e See article SPECIFIC PERFORMANC e Where Offer not Necessary Where It would be Useles S Where the circum- stances show that an offer would have been rejected by the defendant, no offer need be mad e Caldwell v Dulin, 22 Ga 15, where the court said that " it is questionable whether the maxim, one must do equity before he asks equity, would * * * require more of the complainant than an offer to let a decree go against him should it turn out that the case would require a decree against hi M" On the last point see also Sandford v Flint, 24 Mich 26, where, in com- menting upon the omission of an offer in a bill, which was substantially a bill to redeem, the court said that "at most it will in general affect the question of costs onl Y" A Bill to Remove Cloud on Title created by a tax deed, which alleges that no taxes were due upon which the land could be sold, need not offer to pay any taxes as a condition of re- lief Gage v Kaufman, 133 U S 471 Bill for Account. A bill in equity Belief against Usur Y Thus, in a bill seeking relief against a usuri- ous contract, the plaintiff should offer to pay the amount admitted to be due, with legal intereSt 1 Rescission for Frau d And a party who desires to rescind a contract on the ground of fraud should offer to return the thing received, whether it be land or personal propert Y 2 The Government, like an individual, when it comes into court and demands equity, must do equity, or at least offer to do equit Y 3 11 Jurisdictional Averment S The facts requisite to show that the court has jurisdiction must be directly averred in the bil L 4 12 Allegations of Frau d See article FRAU d 13 Allegations in Excuse for Lache S See article LACHE S upon a mutual account imports an offer on the part of the plaintiff to pay any balance that may be found due from him to the defendant, and in modern practice it is not necessary that such offer shall be expressly mad e Goldthwait v Day, 149 Mas S 185; Hyre v Lambert, 37 W Va 28; Craig v Chandler, 6 Colo543; Hud- son v Barrett, I Par S E Q Ca S (Pa) 414 See also Nelson v Ferdinand, in Mas S 300; Barton v May, 3 Sandf C H ( N Y)45 O Bill to Annul Fraudulent Tax Titl e I N Taylor v Snyder, Wal K (Mich) 490, a bill to have a tax sale declared fraudulent and void, it was held that it was not necessary to offer in the bill to refund the money paid by the defendant for the tax title fraudulently obtained by hi M In a Bill to Enforce a Vendor' s Lien on land for the unpaid purchase money, it is not necessary to aver the plaintiff's readiness and willingness to convey as stipulated in his bond for title, unless the bond contains a stipulation that the purchase money shall not be due and payable until a deed of conveyance is mad e Mun- ford v Pearce, 70 Ala 452 Conditional Decre e In some cases where an offer to repay money re- ceived would ordinarily be required its absence is not fatal, and the object and purpose of the rule may be satis- fied by framing the decree so as to impose equitable conditions upon the relief granted the plaintiff S Thomas v Beals, 154 Mas S 51 See also Shuee v Shuee, 100 Ind 477 1 Miller v Bates, 35 Ala 580; Crawford v Harvey, I Blackf (Ind) 382; American Freehold Land, etc, Co z/ Jefferson, 69 Mis S 770; Giveans v McMurtry, 16 N J E Q 468; Miller v Ford, i N J E Q 358; Ware v Thompson, 13 N J E Q 66; Fanning v Dunham, 5 John S C H ( N Y) 122; Judd v Seaver, 8 Paige ( N Y) 548; Rogers v Rathbun, i John S C H ( N Y) 367; Matthews v Warner, 6 Fed Rep 461; Mason v Gardiner, 4 Br O C C 436; Scott v Nesbitt, 2 Br O C C 641, not e See also McDaniels v Bar- num, 5 Vt 279; Hudnit v Nash, 16 N J E Q 550 Compare Chester v Apperson, 4 Heis K (Tenn) 653 But in Long v McGregor, 65 Mis S 70, it was held unnecessary for the plaintiff to offer to pay legal interest in order to obtain relief from usurious interest, there being other circum- stances justifying a resort to equit Y Sufficiency of OffeRA statement that " the plaintiff hereby offers to pay the real advance and lawful interest " is a substantial compliance with the rul e Miller v Bates, 35 Ala 580; Mobile Branch Bank v Strother, 15 Ala 60 2 Murphy v McVicker, 4 McLean (U S) 252; Des Moines, etc, RCo v Alley, 16 Fed Rep 732 3 U S v White, 17 Fed Rep 565 In that case it was held that where the United States files a bill to set aside a patent for land, on the ground that it was obtained upon false testi- mony, it should at least offer to return the purchase money paid by the pat- entee for the lan d But it is not necessary to offer to re- fund the moneys furnished by the de- fendant to his agents, in order to se- cure such patent S U S v Trini- dad Coal, etc, Co, 137 U S 160 4 Griswold v Mather, 5 Con N 435 See article JURISDICTIO N v SIGNATURE OF COUNSEL 1 As a General Requisit e Every bill, whether original or not, or whatever may be its species, must, according to the general practice, be signed by counse L 1 2 How Mad e Where a rule of court requires that the bill "shall contain the signature of counsel annexed to it," an indorse- ment of his name on the back of it has been held sufficient. 2 1 Daniell C H Pr (6th A M e d) 312; Story E Q Pleading, 47; Par- tridge v Jackson, 2 Ed W C H ( N Y) 520; Carey v Hatch, 2 Ed W C H ( N Y) 190; Davis v Davis, 19 N J E Q 180; Hampton v Coddington, 28 N J E Q 557; Everhart v Everhart, 3 Luz.

Autor of the post: Undefined

Stinson v Hil- drup, 8 Post Date: Wed, 30 Jul 2008 8:48:27 +0000
L Reg (Pa) 55; French v Dear, 5 Ve S JR547- This practice is said to have com- menced in the time of Sir Thomas More, in consequence of an order made by hi M Cooper E Q P I 18 United States Equity Rule 24 pro- vides that "every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him, and the case laid before him, there is good ground for the suit in the manner in which it is frame d" Exceptions Signature by Plaintiff Where the plaintiff sues in person it seems doubtful if the bill need be signed by counsel, the signature of the party himself being probably suffi- cient. See Hoffman C H Pr 97 In Chapman v Banker, etc, Pub- lishing Co, 128 Mas S 478; Taunton v Taylor, 116 Mas S 255; and Carleton v Rugg, 149 Mas S 550, a bill signed only by the plaintiff was treate d as sufficient; as was, in Burns v Lynde, 6 Allen (Mas S) 305, a bill signed by an attorney in fa Ct United States Rev Stat, 747, pro- vides that "in all the courts of the United States the parties may plead and manage their own causes person- ally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts respectively, are permitted to manage and con- duct causes therein;" and it is said that this would probably dispense with the signature of counsel where the plaintiff sues in perso N I Foster Fed Pr (2d e d), 86 Sufficiency of Signatur e A bill law- fully brought in the name of a city may properly be signed by the mayoRTaunton v Taylor, 116 Mas S 255 In Johnson v Johnson, Wal K (Mich)3og, a signature to the affidavit verifying a petition was held a suffi- cient signature to the petitio N But a bill brought by ten persons named therein as plaintiffs, and signed by only two of them, without any signature either of themselves or of counsel in behalf of the others, was held to be the bill of those two onl Y Chapman v Banker, etc, Pub- lishing Co, 128 Mas S 478 Plaintiff's Signature, when Unneces- sar Y The bill need not be signed by the plaintiff if it is signed by counse L Hatch v Eustaphieve, Clarke C H ( N Y) 63 See also Stadler v Hertz, 13 Lea (Tenn) 315; Swan v Newman, 3 Head (Tenn) 289 And a bill in the name of an incor- porated city, signed by counsel, need not have the corporate seal annexe d Moundsville v Ohio RCo, 37 W Va 92; George's Creek Coal, etc, Co v Detmold, i Md C H 371 Counsel or SolicitoRIn the courts of this country, both federal and state, there is usually no substantial dis- tinction between counsel and solici- tors; and a bill signed by a person regularly admitted to practise in the court is sufficient. Stinson v Hil- drup, 8 Bis S (U S) 376; Eveland v Stephenson, 45 Mich 394; Henry v Gregory, 29 Mich 68 As SolicitoRThe lawyer who signs pleadings in chancery usually desig- nates himself as solicitoRStinson v Hildrup, 8 Bis S (U S) 376; i Daniell C H Pr (6th A Me d) 312, note i, citing i Hicks' Ma N C H Pr 46 In Stinson v Hildrup, 8 Bis S ( U S) 376, Drummond, J, said that it might be a matter of grave doubt whether, in point of fact, the true con- struction of United States Equity Rule 24, " if a counsellor of the court did actually append his signature to the bill, would require him to describe himself in any other way than what might be inferred from the mere sig- nature itself" 2 Dwight v Humphreys, 3 McLean But a bill is not "signed by counsel" where his name is under- written thereto by another person, 1 although a signature in the firm name by one of two counsellors who are in partnership is sufficient.

Autor of the post: Undefined

" 1 Davis v Davis, 19 Post Date: Wed, 30 Jul 2008 8:35:35 +0000
2 3 Effect of Omission Plaintiff 'sEemed Y The omission of a signa- ture cannot be remedied after the bill has been filed, except under an order of the court. 3 But the court will, in a proper case, grant leave to amend, 4 even after a motion to strike the bill from the files on account of the defe Ct 5 Defendant's Remed Y The omission of signature of counsel is a ground for demurrer, 6 and may also be taken advantage of by motion to strike the bill from the files, 7 and the court may of its own motion order the bill to be taken off the fil e 8 V I AFFIDAVIT TO BIL L See article VERIFICATIO N VI I AUTHORITY TO FILE THE BILL As a General Requisit e A suit cannot be regularly instituted on behalf of a party without his au- thority ; 9 and this rule applies as well to cases where the party (U S) 104, under United States Equity Rule 24 See also Litton v Armstead, 9 Baxt (Tenn) 514, where it was rec- ommended as the better practice for the counsel to sign his name upon the face of the bil L But, the name of counsel appearing in the form of a signature on the back of the bill, the court held that the bill should not have been dismissed for the irregular- ity, "which could easily have been cured by signing, under the direction of the court." 1 Davis v Davis, 19 N J E Q 180, where the court said that "whether the name of this counsel was so signed to this bill, with his assent or not, is immateria L" A Printed Signature of counsel was held insufficient in Eveland v Stephen- son, 45 Mich 394 Signature of Attorney-Genera L Where a bill in chancery to annul a patent to land was filed in the name of the United States, having the signature of the attorney-general of the United States subscribed by his authority, the court is authorized to entertain the bil L U S v Mullan, 10 Fed Rep 785; Bookwalter v Clark, 10 Fed Rep 793 2 Hampton v Coddington, 28 N J E Q 557- 3 Partridge v Jackson, 2 Ed W C H ( N Y) 520, where a bill signed by counsel while it was on the files was ordered to be stricken off 4 Carey v Hatch, 2 Ed W C H ( N Y) 191, where the solicitor stated that counsel was retained, who perused the bill, and that the solicitor went to counsel's office to get his signature, but did not find hi M Sill v Ketchum, HarR(Mich) 423; Dwight v Hum- phreys, 3 McLean (U S) 104; Kirkley v Burton, 5 Mad d 231 5 Carey v Hatch, 2 Ed W C H ( N Y) 190, cited in the preceding not e 6 Cooper E Q P I 18; Daniell C H Pr (6th A M e d) 312; Kirkley v Bur- ton, 5 Mad d 378; Dwight v Hum- phreys, 3 McLean (U S) 104 See also Wright v Wright, 8 N J E Q 143; Sill v Ketchum, HarR(Mich) 423 Contra, Gove v Pettis, 4 Sandf C H ( N Y)403; Everhart v Everhart, 3 Luz.

Autor of the post: Undefined

The Governor of a State Post Date: Wed, 30 Jul 2008 8:24:17 +0000
L Reg (Pa) 55 7 Gove v Pettis, 4 Sandf C H ( N Y) 403; Partridge v Jackson, 2 Ed W C H ( N Y) 520; Eveland v Stephen- son, 45 Mich 394; Dillon v Francis, Dic K 68; French v Dear, 5 Ve S JR547- 8 French v Dear, 5 Ve S JR547 9 Daniell C H Pr (6th A M e d) 306, 307; Frye v Calhoun County, 14 111 132; Kankakee v Kankakee, etc, RCo, 115 111 88 Bill by United State S In a bill on behalf of the United States to set aside a patent for land, " it is essential * * * that, without special regard to form, but in some way which the court can recognize, it should appear that the attorney-general has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his con- sues as a coplaintiff 1 or as a next friend, 2 as to cases where he sues alone, and even to cases where his name is merely made use of pro forma? By Paro L In this country a warrant of attorney is not usually required, but authority may be conferred by paro L 4 Presumption of Authorit Y If an attorney brings a suit in the name of another, the legal presumption is that he has been retained for the purpose ; 5 and it is only when his right to represent the plain- tiff is questioned, and the presumption that he has been employed is rebutted, that he will be called upon to produce proof of his authorit Y 6 Remedy where Suit Unauthorize d But in such a case, if he fails to show any authority to institute the suit, it will be summarily dis- missed by the court upon motion of the defendant, 7 or, upon mo- trol of the caus e" Per Justice Miller in U S v Trockmorton, 98 U S 61, where it was held that a bill "by W v d, the United States attorney for that district, on behalf of the United States," did not sufficiently indicate that it had received the sanction of the attorney-general or was brought by his directio N See Bookwalter v Clark, 10 Fed Rep 793; and U S v Mullan, 10 Fed Rep 785, where the authority of the attorney-general suffi- ciently appeared within the principle above state d In U S v Union Pac RCo-.gSU S 569, a special act of congress was de- clared constitutional which instructed the attorney-general to bring a bill in equity in the name of the United States, to secure relief in its behalf against stockholders of a corporation created by the government. The Governor of a State may authorize an attorney to bring an action in its na Me Texas v White, 7 Wal L ( U S) 700 The Board of Health of a City may, in Massachusetts, bring a bill in equity in the name of a city (which may prop- erly be signed by the mayor) to re- strain the exercise ofan offensive trade or employment which it has prohib- ite d Taunton v Taylor, 116 Mas S Bill by Tow N In Illinois there is no officer or board representing the cor- porate authority of the town, and a suit cannot be lawfully instituted in its name without the authority of the electors, given at a town meetin g Kankakee v Kankakee, etc, RCo, 115 111 88 1 Daniell C H Pr (6th A M e d) 307 See also Bank Com'rs v Buf- falo Bank, 6 Paige ( N Y)4g7 2 Daniell C H Pr (2d A M e d) 353; Ward v Ward, 6 Beav 254 3 Daniell C H Pr (6th A M e d) 307; Wilson v Wilson, I J W 437 See also Mulford v, Allen, 2 N J E Q 288 Compare Hargraves v Lewis, 6 Ga 207, 7 Ga No 4 Frye v Calhoun County, 14 111 132 See also Osborn -v U S Bank, 9 Wheat.

Autor of the post: Undefined

4 of the court Post Date: Wed, 30 Jul 2008 8:08:43 +0000
(U S) 738 5 American In S Co v Oakley, 9 Paige ( N Y) 497; Frye v, Calhoun County, 14 111 132; African Methodist Bethel Church v Carmack, 2 Md C H 143; George's Creek Coal, etc, Co v Detmold, i Md C H 371; Pope -v Leonard, 115 Mas S 286 Attorney in Fa Ct Where a bill is signed by an attorney in fact, it need not contain an allegation that the per- son assuming to act as such attorney is such in realit Y Burns v Lynde, 6 Allen (Mas S) 305 6 Bank Com'rs v Buffalo Bank, 6 Paige ( N Y) 497; Frye v Calhoun County, 14 111 132 7 Kankakee v Kankakee, etc, RCo, 115 111 88, holding also that the court will dismiss the bill upon its own motion when its attention is called to the want of authorit Y Frye v Cal- houn County, 14 111 132 In that case a judgment creditor's bill was filed by a solicitor without any express or im- plied authority from any of the judg- ment creditors named as plaintiffs in the bill, and it was held that the sub- sequent approval by some of the judg- ment creditors could not prevent a dismissal for the want of authority originall Y It appears from the opinion tion of the plaintiff, it will be taken from the file * or dismissed ; a and the solicitor may be ordered to pay to the defendant his costs of the suit, and to pay the plaintiff's costs of the applica- tion and his incidental expenses as between solicitor and client. 3 VII I FILING BIL L In equity the filing of the bill in the clerk's office is usually regarded as the commencement of the suit. 4 of the court that an unauthorized suit cannot be validated by ratification so as to preclude objection by the Defendant 1 Daniell C H Pr (sth A M e d) 307, V*- Jerdein v Bright, 10 W R380; Palmer v Walesby, L R, 3 C H 732; Davies z/ Davies, 18 L T, N S 70 2 Daniell C H Pr (6th A M e d) 307; Wright v Castle, 3 Meriv 12; Allen v Bone, 4 Beav 493; Crossley v Crowther, 9 Hare 384; Atkinson v Abbott, 3 Dre W 251 Stay of Proceeding S In Nurse v Durnford, 13 C H Div 764, Sir George Jessel, M R, adopted the practice of the common-law courts as laid down in Reynolds v Howell, L R, 8 QB 398, and ordered a stay of proceedings in the suit.

Autor of the post: Undefined

" Gallaher v State, 17 Post Date: Wed, 30 Jul 2008 7:52:25 +0000
Plaintiff made a Defendant Where a coadministrator was made a party plaintiff without his consent, the court, upon his motion, struck his name out of the bill as a plaintiff and granted leave to insert his name as a defend- ant, where it was shown that he desired to litigate a claim adversely to the prayer of the bil L Mulford v Allen, 2 N J E Q 288 3 Daniell C H Pr (6th A M e d) 308; Wright -v Castle, 3 Meriv 12; Palmer v Walesby, L R, 3 C H 732; Allen v Bone, 4 Beav 493 See also Wade v Stanley, i J W 654 In American In S Co v Oakley, 9 Paige ( N Y) 497, it was said that where the adverse party has acquired rights or has been subjected to costs by proceedings in the name of a party who afterwards denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand if the solicitor or attorney is a responsible man, and leaving the party injured to seek his redress against the solicitoRThe rule requiring a solicitor to pay costs for making use of a party's name without consent cannot apply where he has used the names of sev- eral executors or administrators upon a retainer by one of them for that pur- pos e Mulford -v Allen, 2 N J E Q 288 Motion by One of Several Plaintiff S But where one or more of several plaintiffs desire to withdraw from the suit, they should move that their names may be struck out of the bill, and that the unauthorized solicitor may be ordered to pay their costs of the suit and the costs of the applica- tio N Daniell C H Pr (6th A M e d) 308; Tabbernor v Tabbernor, 2 Keen 679 See also Duckett v Gover, 25 W R554- One of several plaintiffs whose in- terests are severable cannot have the entire proceedings dismisse d Green v Fagan, 15 Ala 335 Requisites of Motio N The motion should be promptly made upon affidavit of the plaintiff and notice to the solic- itor and to other parties in the caus e Daniell C H Pr (2d A M e d) 353, 354 4 McLin v McNamara, 2 Dev B E Q (N Car) 82; Aston v Galloway, 3 Ire d E Q (N Car) 126; Clark v Slayton, 63 N H 402; Sheridan -v Cameron, 65 Mich 680; Collins v North British, etc, In S Co, 91 Tenn 432; Montgomery v Buck, 6 Humph (Tenn) 416; Code of Alabama, 3420 See also Fitch v Smith, 10 Paige ( N Y) ii ; Webb v Pell, i Paige ( N Y) 564; Saxton v Stowell, n Paige ( N Y) 526; United States Equity Rule n; Sterrick v Pugsley, i Fli P (U S) 350 Injunction Bill S As to the applica- tion of the rule in injunction bills see Crowell v Botsford, 16 N J E Q 458; Howe v Willard, 40 Vt 655; Stinson z/ Bacon, 9 N J E Q 144 Sufficiency of Filin g Where a deputy clerk of the chancery court requested a private person to receive bills and file them in the absence of the deputy, it was held that bills received and placed in the office with the date of re- ception indorsed thereon were suffi- ciently filed, and should be so indorsed by the cler K Montgomery v Buck, 6 Humph (Tenn)4i6 1 DEFINITIO N A bill of exceptions is a formal statement in writing of exceptions taken by a party on the trial to a ruling, de- cision, charge, or opinion of the trial judge, setting out the pro- ceedings on the trial, the acts of the trial judge alleged to be erroneous, the objections and exceptions taken thereto, together with the grounds therefor, and authenticated by the trial judge according to la W 1 I I STATUTORY ORIGIN IN WHAT CASES ALLOWED 1 Generall Y Prior to the statute of Westminster (13 E d I, C 3i), a the only errors reviewable at common law on a writ of error were those apparent on the face of the record propeR3 The record proper consisted of the pleadings, process, verdict, and judgment. 4 Ex- ceptions to rulings of the court during the progress of the trial were not brought up, 5 as the oral or parol matters on which they were based were not incorporated in the recor d 6 2 Extent of the Statut e The bill of exceptions being, accord- 1 i Burrill Law Diet p 205; Galvin v State, 56 Ind 56; Farnsworth v Coquillard, 22 Ind 453; Matlock v Todd, 19 Ind 130; Gallaher v State, 17 Fla 379; Hanna v Maas, 122 U S 26; More -v Del Valle, 28Cal170; Wetherbee v Carroll, 33Cal549; Roo- ney v Tong, 4 Mont 596; Vicksburg, etc, RCo v Ragsdale, 51 Mis S " The bill of exceptions is a simple history of the case as tried, and should contain nothing more or less than the facts as they appeared to the court and jury from the commencement of the trial until the final judgment by the court." Gallaher v State, 17 Fla 379; citing Coker v Hayes, 16 Fla 368; Reed v State, 16 Fla' 573 In Caston v Brock, 14 S Car 108, it is said: " Both of these expressions, 'on a bill of exceptions' and 'on exceptions taken,' are familiar to the courts of common law, and have been so from time immemoria L Until the recent act on the subject, exceptions were always taken at the tria L They were usually taken orally, but might be taken in writin g The taking ofan exception before the jury left their seats, was an act incident to the trial that laid the foundation for a bill of exception S The bill of exceptions was a formal statement for the pur- poses of a writ of error or appeal to a court possessing the proper jurisdic- tion, by way of review of the excep- tions that had already been taken upon the tria L" Written Statement of Formal ProteSt In People v Torres, 38Cal142, it was said: "An exception is a formal protest against the ruling of the court upon a question of law, and a bill of exceptions is a written statement, set- tled and signed by the judge, of what the ruling was, the facts in view of which it is made, and the protest of counse L" 2 "When one impleaded before any of the justices alleges an excep- tion, praying they will allow it; and if they will not, if he that alleges the ex- ception writes the same, and requires the justices will put to their seals, the justices shall so do; and if one will not another shall; and if, upon complaint made of the justice, the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written excep- tion, with the seal of the justices thereto put, the justice shall be com- manded to appear at a certain day, either to confess or deny his seal; and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowe d" Bacon Ab R, tit " Bill of Exception S" 3 Wheeler v Winn, 53 Pa St 127; Downing v Baldwin, i S R(Pa) 304- 4 See Where Bill is not Required, infr A 5 Wheeler v Winn, 53 Pa St 127 6 Downing v Baldwin, i S R(Pa) 304 In Englan d In England bills of ex- ceptions have since been abolished by the Supreme Court of Judicature Act 1873, 36 37 Viet, C 66 ingly, purely a creation of statute and unknown to the common law, 1 it cannot be extended to cases not within the contemplation of the statut e 2 The Statute of Westminster was applicable only to civil cases sued in courts following the common la W 3 3 In Criminal Case S The statute was not applicable to criminal cases, and no bill of exceptions would at common law lie therei N 4 The same rule obtains now in states following the common law, or whose statutes allowing bills of exceptions are substantially identical with the Statute of WestminsTer 5 The bill cannot be re- sorted to in such cases unless extended thereto by express decla- ration of the statute or necessary implication from its term S 6 1 Alabama Ned v State, 7 Port (Ala) 187 Illinoi S Baxter v People, S 111 368 Indiana Coffin v McClure, 23 Ind 356 Mississipp I Van Buren v State, 24 Mis S 514; Vicksburg, etc, RCo v Ragsdale, 51 Mis S 457 Missour I Consaul v Lidell, 7 Mo 251; Garth v Caldwell, 72 Mo 630 Englan d Bulkeley v Butler, 2B C 434, 9 E C L 133 In Dunbar v Hollinshead, 10 Wi S 507, it was said: "The practice of al- lowing exceptions had its origin under that statute, of which all subsequent statutes have been substantially copie S" 2 Moline, etc, Co v Curtis, 38 Neb 520 Attachment Proceeding S Unless the statute expressly extends it to statu- tory proceedings, it is not proper on appeal from a decision on a motion to dissolve an Attachment Moline, etc, Co v Curtis, 38 Neb 520 Not an Implied Right.

Autor of the post: Undefined

Where Availabl e Post Date: Wed, 30 Jul 2008 7:38:29 +0000
A right to have a bill of exceptions is not an im- plied right from the privilege of in- stituting proceedings in erroRSo, al- though a proceeding in error may be brought in an action to oust a public official from office, a bill of exceptions does not lie unless the statute ex- pressly extends to such a proceedin g Hopkins v Scott, 38 Neb 661 Implication Mad e In Wisconsin, a sec- tion under achapter of statutes entitled " of actions against the state," declar- ing that the Circuit Court shall pro- ceed to try by jury as in other cases " the said questions of fact subject to the laws, rules, and regulations of said court," was held to uphold the settlement of a bill of exceptions or case in an appeal taken in such a cas e Calkins v State, 13 Wi S 390 3 Marylan d Mayhew v Soper, 10 Gill J (Md) 372; Earth v Rosen- feld, 36 Md 604 Mississipp I Vicksburg, etc, RCo v Ragsdale, 51 Mis S 451 New Jerse Y Newton v Gloucester, 6 N J L 406; Van Waggoner v Cos, 25 N J L 197; Davis v Hendrick- son, 15 N J L 483; Roston v Morris, 25 N J L 173; Elkinton v Bennet, 3 N J L 219 New York Sweet v Overseers of Poor, 3 John S ( N Y) 23 Ohio Barto v Abbe, 16 Ohio 408 Certiorar I So it was held in Moore v Hamilton, 24 N J L 532, that the Court of Common Pleas on hearing a certiorari from the judgment of a jus- tice of the peace could not, on further appeal to the Court of Errors, sign and seal a bill of exceptions in the cas e 4 Reg v Esdaile, i F F 215; State v Henry, 2 Mo 218; Mitchell v State, 3 Mo 283; Vaughn v State, 4 Mo 290; Haines v Co M, 99 Pa St 419 5 Illinoi S Fielden v People, 128 Marylan d Lord Proprietary v King, iHar M (Md)83; Bulany v State, 45 Md 100; Queen v State, 5 HaR J (Md) 232 New York People v Vermilyea, 7 Co W ( N Y) 108; Ex p Barker, 7 Co W ( N Y) 143; People v Bodine, I De N ( N Y) 309 Such was the rule formerly, but now by statute the remedy is allowe d See Code Cri M Pro, tit vin, c H I United State S U S v Gibert, 2 Sum N (U S) 19 VirginiaCase v Co M, i Va Ca S 264 6 Haines v Co M, 99 Pa St 419; Schoeppe v Co M, 65 Pa St 51; Mid- dleton v Co M, 2 Watts (Pa) 285 In Massachusetts a bill of exceptions in criminal cases seems to have been 4 Special Statutory Proceeding S A bill of exceptions does not lie in special statutory actions unknown to the common law un- less expressly made applicable theret O 1 5 Courts of Inferior Jurisdictio N Nor will it lie to decisions of courts of inferior jurisdiction, as the court of a justice of the peac e 2 6 Quasi-judicial Tribunal S A bill of exceptions will not lie to judgments rendered by quasi-]ud\c\ A\ boards especially constituted by statut e 3 allowed by early statute S Co M v Cummings, 3 Cus H (Mas S) 212; Co M v Dow, 5 Met (Mas S) 329 In Nevada it has been held that where a statute allows an appeal in criminal cases, and does not direct what the record shall be, a bill of ex- ceptions should be resorted t O State v Murphy, 21 Nev 332; State v Fel- lows, 8 Nev 311; State v Lamb, 20 Nev 181 Contents where Allowabl e A bill of exceptions in a criminal case should contain every ruling raising a ques- tion of law, whether on the trial or in proceedings preliminary thereto, as proceedings upon a motion to quash the informatio N People v Judge, 28 Mich 268 Who may Appeal under Such Statut e The defendant generally may now appeal, but not the stat e U S v More, 3 Cranch (U S) 174: State v Johnson, 2 Iowa 549; State v Jones, 7 Ga 422: People v Corning, 2 N Y 9; Co M v Cummings, 3 Cus H (Mas S) 212 See Appeals in Criminal Cases, article APPEALS, Vo L I I, p 320 1 McKeon v King, 9 Pa St 213; Mann v Cassidy, i Brew S (Pa) u; Election Cases, 65 Pa St 20; Moore v Hamilton, 24 N J L 532 Proper Remed Y The proper course to get at the facts before the trial court in such a case on certiorari is to take a rule upon the court below to certify what the facts were in the first instance, and then, if the court fails to certify, a resort may be had to a rule for affidavit S Moore -v Hamilton, 24 N J L 532 Possessory Actio N In a statutory action unknown to the common law to recover possession of demised prop- erty, a bill of exceptions is not appli- cable unless made so by the statut e McKeon v King, 9 Pa St 213 Election Case S Nor is a bill of ex- ceptions applicable to a decision in a contested election cas e Mann v Cas- sidy, i Brew S (Pa) n ; Election Cases, 65 Pa St 20 Habeas Corpu S So it will not lie in proceedings on habeas corpus before a judge at chamber S People v Judge, 30 Mich 266 Insolvency Cas e It cannot be em- ployed on certiorari to bring up the facts in an insolvency cas e Van Waggoner v Coe, 25 N J L 197 2 Thorn v Reed, i Ark 490; Rud- dell v Mozer, i Ark 503; Vlasek v Wilson ( Neb, 1895), 62 N W Rep 245; Moline, etc, Co v Curtis, 38 Neb 520; Hopkins v Scott, 38 Neb 666; Real v Honey, 39 Neb 516 Forcible Entry and DetaineRIt can- not be used to certify up the facts on appeal from the decision of a justice of the peace, as in an action of forcible entry and detainer, unless the stat- ute so authorize S Thorn i. Reed, i Ark 490; Ruddell v Mozer, i Ark 503- In Nebraska A bill of exceptions may be taken in an action of forcible entry and detainer before a justice of the peac e Osborn v Shotwell, 33 Neb 348 And in an action tried before him with a jury the bill lie S Real v Honey, 39 Neb 516; Haskins v Citi- zens' Bank, 12 Neb 39 Kansa S In Kansas a bill of excep- tions is proper on appeal from a deci- sion of a justice of the peac e Haga- man v Neitzel, 15 Ka N 383; Kykendall v Clinton, 3 Ka N 85 Statute Strictly Construe d A statute allowing justices of the peace to sign billsiof exceptions onappeals from their decisions in jury trials will be strictly construed, and the bill will not lie in any other class of case S Moline, etc, Co v Curtis, 38 Neb 520; Taylor S Til- den, 3 Neb 339; Kellogg v Hunting- ton, 4 Neb 96; Nickerson v Needles, 32 Neb 230; Chicago, etc, RCo v Goracke, 32 Neb 90 3 Yalabusha County v Carbry, 3 7 In Chancery Generall Y In equity, as the evidence and all ob- jections thereto, and all the orders and decrees of the court, are in writing, under technical chancery practice, and are parts of the record proper, a bill of exceptions is improper ;* and where taken, will be disregarded on appea L 2 Feigned issue S Nor does it lie, unless by statute, upon feigned issues sent from courts of equity to courts of la W 3 Smed M (Mis S) 529; Jane v Alley, 64 Mis S 446 A bill of exceptions cannot, without express statute, be taken to the orders and proceedings of a board of mayor and alderme N Jane v Alley, 64 Mis S 446 So in Pennsylvania no bill of excep- tions was permissible to a decision of the Court of Quarter Sessions until the Act of igth May, 1874 Dromgold v Co M, i W N C (Pa) 454 1 Alabama Barnett v, Montgom- ery, etc, RCo, 51 'Ala 556 Colorad O Blatchley v Coles, 6 Colo82 Florida Lente v Clarke, 22 Fla Illinoi S Ferris v McClure, 40 111 99; Smith v Newland, 40 111 100; Mason v Blair, 33 111 194 Missour I Madden v Madden, 27 Mo 544 Mississipp I Bell v Gordon, 55 Mis S 45 New MexiCo Parish v New Mexico M Co ( N Mex, 1889), 21 Pac Rep Waskingto N Parker v Denney, 2 Wash Ter 176 United State S Ex p Story, 12 Pet (U S) 339 . Where Availabl e Where a bill of exceptions is available by statute in a chancery caus eit is unnecessary where the oral evidence heard by the court is reduced to writing and embodied as a recital in the record of the decre e Benjamin v Birmingham, 50 Ark 433; Swift v Castl e 23 111 209 2 Barnett v Montgomery, etc, RCo, 51 Ala 557; Alexander S Alex- ander, 5 Ala 517; Clayton v Nugent, i Col L 362 Probate Case S So in Nebraska it is held not applicable to the opinions of a probate judge on questions of law arising during the trial, unless the cause is tried by a jur Y Taylor v Tilden, 3 Neb 339; Kellogg v Hunt- ington, 4 Neb 96 In Alabama, for the review of ques- tions depending on the evidence, on appeal from the Probate Court a proper bill of exceptions must be used to bring up such matter S Tapp v Cox, 56 Ala 553; Jaques v Horton, 76 Ala 238 Trial de Nov O In Iowa a formal bill of exceptions is not required in a cause triable de novo, where the evidence of- fered below is duly made part of the recor d Hunter v Des Moines, 74 Iowa 215 3 Pearce v Clements, 73 Ala 256; Rolater v Rolater, 52 Ala in; Ned v State, 7 Port (Ala) 187; Bourne v State, 8 Port (Ala)458; Petty v Dill, 53 Ala 642; Barth v Rosenfeld, 36 Md 604; Johnson v Harmon, 94 U S 371; Ex p Story, 12 Pet (U S) 339; Watt v Starke, 101 U S 247; Arm- strong v Armstrong, 3 My L K 52 Scope where Take N Where taken it can only be used on a motion for new trial made to such court.

Autor of the post: Undefined

Weinrich v Por- supreme Post Date: Wed, 30 Jul 2008 7:27:32 +0000
Johnson v Harmon, 94 U S 371 In Admiralt Y Under United States practice in admiralty a bill of excep- tions is not necessary to give the Su- preme Court of the United States ju- risdiction of an appeal, but is essential to the review of the rulings of the court excepted to on the tria L 18 Statat Large, pt. 3, p 315 The S C Tryon, 105 U S 270 The bill should be prepared "as in actions at law," so as to present points of law alon e In re Francis Wright, 105 U S 381 Actions in Ber N A bill of exceptions lies on the trial of a libel sued as a process in rem for a forfeitur e Barn- acoat -v Six Quarter Casks, i Met (Mas S) 225 New MexiCo And in Parish v New Mexico M Co ( N Mex), 21 Pac Rep 82, it was held that a statute requiring a bill of exceptions to be prepared to bring up exceptions not appearing on the record, where it is intended to re- view by appeal or writ of error, does not extend to chancery cases, since 8 Where Made Applicabl e Where it is made applicable by stat- ute to cases arising under the criminal law, special statutory juris- diction, or equity procedure, the same rules and practice obtain as in common-law cases unless the statute declares otherwise, 1 and the remedy is equally exclusiv e 2 9 Scope of Bill in Actions at Law a, GENERALL Y The rule generally prevailing is that, unless a statute provides otherwise, a bill of exceptions does not lie to rulings made in a case after verdict, 3 or on a motion for new tria L 4 But it is not confined to jury trials ; 5 and in Maryland the Statute of Westminster is liberally construed as extending to collateral motions, as to set aside a sheriff's sal e 6 b IN CASES TRIED WITHOUT A JUR Y The bill of excep- tions is an appropriate remedy to bring up alleged errors in the progress of a civil action at law before a court without a jur Y 7 C BEFORE REFERE e A bill of exceptions must also be taken to raise exceptions for review noted on a trial by a refere e 8 Comp Laws 1884, 522, requires the before judgment. Weinrich v Por- supreme and district courts in the ex- ercise of chancery jurisdiction to con- form their decisions, decrees, and proceedings to the laws and usages peculiar to that jurisdiction in this ter- ritory and the United States court S 1 McGee v Jones, 63 Mis S 453; Shannon S People, 5 Mich 36; Haines v Co M, 99 Pa St 410; Vaiden v Co M, 12 Gratt ( Va) 717; Uhling v Schellenberg, 12 Neb 609; State v Judges, 41 Mo 574 2 Grant v Co M, 71 Pa St 495; Haines v Co M, 99 Pa St 419; Hop- kins v Co M, 50 Pa St 9 Under the Cod e Under Codes of Procedure, abolishing the distinction between legal and equitable forms of procedure, a bill of exceptions, or its statutorysubstitut eis as essentialin an equitable as in a legal actio N Blatch- ley v Coles, 6 Colo82; Marshall Silver Mi N Co v Kirtley, 8 Colo108 3 Harper v Minor, 27Calno; Gallaher v State, 17 Fla 379 4 Churchill v Circuit Judge, 56 Mich 539; Johr v People, 26 Mich 427; Weinrich v Porteus, 12 Nev 104 See article NEW TRIA L No WaiveRHence taking out a writ of error and filing a stay bond cannot be treated as a voluntary waiver of the right and relief from matters subsequent to verdi Ct Church- ill v Circuit Judge, 56 Mich 536 So in Nevada it is held that the only bills of exceptions which can be brought up by appeal are those taken during the progress of the cause before judgment, teus, 12 Nev 104 Inquiry in Damage S It does not ex- tend to an inquiry in damages exe- cuted at the bar of the court.

Autor of the post: Undefined

Pennsylvania Conrow v Schloss Post Date: Wed, 30 Jul 2008 7:13:41 +0000
Bell v Bell, 9 Watts (Pa) 47 Discharging Bai L Nor does it ex- tend to a ruling discharging on com- mon bail or directing the quantum bai L Shortz v Quigley, I Bin N (Pa) 222 Mississipp I A party who has had two new trials granted him is not en- titled to any benefit in this court from a bill of exceptions taken on the over- ruling of his motion for a third new trial, but is confined to his special bills of exceptions taken in the prog- ress of the trial and before the jury retires from the baRStrickland v, Hudson, 55 Mis S 235 5 Nesbitt v Dallam, 7 Gill J (Md) 507; Briscoe v Ward, iHar J (Md) 465 See alsoB In Cases Tried without a Jury , infr A 6 Nesbitt v Dallam, 7 Gill J (Md)494 7 Wolf v Campbell, 23 111 App 482; Concanon v Blake, 16 Wi S 518; Griswold v Sharpe, 2Cal17; Nes- bitt v Dallam, 7 Gill J (Md) 507; Briscoe . Ward, iHar J (Md)46 S Under United States practice ques- tions of law arising upon the trial of an issue of fact cannot be made part of the record by a bill of exceptions, un- less the trial is by jury or by the court after due waiver in writing of a jury tria L Andes v Slauson, 130 U S 435 8 Goodrich v Marysville, 5Cal d INTERLOCUTORY DECISION S Unless granted by statute no appeal can be taken from an interlocutory decision, and no bill of exceptions lies theret O 1 e QUESTIONS OF LAW ONL Y By the Statute of Westminster the bill was not applicable to rulings resting in discretion, and could be taken upon some question of law onl Y 2 Questions of fact lay within the discretion of the trial judge, and could not be brought up for revie W 3 The same rule obtains now except as modified by statut e 4 10 On Appeals from Order S Under modern practice a bill of exceptions is not proper on appeal from an order made on affi- davit S 5 The papers should be attached to the orders, and the 430; Hills v Seeley, 37 Wi S 246; Gilbank v Stephenson, 30 Wi S 155; Dougherty v North Wisconsin RCo, 36 Wi S 402; Cairns v O'Bleness, 40 Wi S 470; Altman v Wheeler, 18 Mich 240 1 Shortz v Quigley, I Bin N (Pa) 222; Safford v Knight, 117 Mas S 281; Co M v Sallen, n Gray (Mas S) 52; Bursley v Barnstable, 14 Gray (Mas S) 106; Marshall v Merritt, 13 Allen (Mas S) 274; Co M v Gloucester, no Mas S 491; Jackson v State, 76 Ga 551; State v Weston, 23 Min N 366 See also article APPEALS, Vo L I I, p 80 2 Maine Caldwell v Cole, 13 Me 120; Loud v Pierce, 25 Me 233; Moody -v Hinkley, 34 Me 200 Massachusett S Reynard v Breck- nell, 4 Pic K (Mas S) 302; Bruce v Fairbanks, 12 Cus H (Mas S) 273 New Hampshire Thayer v El- liott, 16 N H 102 New York Kelly v Kelly, 3 Barb ( N Y) 419; Graham v Camman, 2 Ca I ( N Y) 168; Van Gordon v Jack- son, 5 John S ( N Y) 467; Frier v Jackson, 8 John S ( N Y) 507; People v Rathbun, 21 Wen d ( N Y)545; Peo- ple v Colt, 3 Hill ( N Y) 432; Jen- kins v Brown, 21 Wen d ( N Y) 454; Binnard v Spring, 42 Barb ( N Y) 470; Mann v Herkimer County Mut In S Co, 4 Hill ( N Y) 187; Coovern v Mutual In S Co, 3 De N ( N Y)254; Roth v Schloss, 6 Barb ( N Y) 308; Brown v McCune, 5 Sandf ( N Y) 224; Kissam v Roberts, 6 Bosw ( N Y) 154; Lansing v Wiswall, 5 De N ( N Y)2i 3 . Pennsylvania Conrow v Schloss, 55 Pa St 37; Ballentine v White, 77 Pa St 20 Rhode Islan d Edwards v Hop- kins, 5 RI 138; Providence County Sav Bank v Phalen, 12 RI 495 Ver Mont Fairfield v King, 41 Vt 6x1 United State S Ex p Crane, 5 Pet (U S) 199 Finding of Court.

Autor of the post: Undefined

So where an appeal Post Date: Wed, 30 Jul 2008 7:00:45 +0000
It will not lie to bring up for review the finding of a court on questions of fact sub- mitted to it. Emerson v Young, 18 Vt 603; Kettell v Foote, 3 Allen (Mas S) 212; Doe v Spraggins, 2 111 330; Fletcher v Clarke, 29 Me 485; Norwich, etc, RCo v Kay, 22 Con N 603 Amendment. So where an appeal is taken from an order refusing to allow an amendment, the bill of exceptions must show that the judge ruled as a matter of law that the proposed amendment was not allowabl e Gil- man v Emery, 54 Me 460 See article AMENDMENTS, Vo L I, p 458 3 Carey v Cobbet, 2 Yeates (Pa) 277 4 Governor v Evans, i Ark 360; State v Jennings, 10 Ark 449; Heze- kiah v Montross, 21 Ark 454; Ash- ley v Stoddard, 26 Ark 653; Zeller z/ Eckert, 4 How (U S) 297; Ex p Crane, 5 Pet (U S) 199 It lies only to points of law either arising on a ruling on the admissibil- ity of evidence or a challenge to the jury, or to questions of law arising on facts not denied or sufficiently proved, in which either party has been over- ruled by the court.

Autor of the post: Undefined

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49 | 50 | 51 | 52 | 53 | 54 | 55 | 56 | 57 | 58 | 59 | 60 | 61 | 62 | 63 | 64 | 65 | 66 | 67 | 68 | 69 | 70 | 71 | 72 | 73 | 74 | 75 | 76 | 77 | 78 | 79 | 80 | 81 | 82 | 83 | 84 | 85 | 86 | 87 | 88 | 89 | 90 | 91 | 92 | 93 | 94 | 95 | 96 | 97 | 98 | 99 | 100 | 101 | 102 | 103 | 104 | 105 | 106 | 107 | 108 | 109 | 110 | 111 | 112 | 113 | 114 | 115 | 116 | 117 | 118 | 119 | 120 | 121 | 122 | 123 | 124 | 125 | 126 | 127 | 128 | 129 | 130 | 131 | 132 | 133 | 134 | 135 | 136 | 137 | 138 | 139 | 140 | 141 | 142 | 143 | 144 | 145 | 146 | 147 | 148 | 149 | 150 | 151 | 152 | 153 | 154 | 155 | 156 | 157 | 158 | 159 | 160 | 161 | 162 | 163 | 164 | 165 | 166 | 167 | 168 | 169 | 170 | 171 | 172 | 173 | 174 | 175 | 176 | 177 | 178 | 179 | 180 | 181 | 182 | 183 | 184 | 185 | 186 | 187 | 188 | 189 | 190 | 191 | 192 | 193 | 194 | 195 | 196 | 197 | 198 | 199 | 200 | 201 | 202 | 203 | 204 | 205 | 206 | 207 | 208 | 209 | 210 | 211 | 212 | 213 | 214 | 215 | 216 | 217 | 218 | 219 | 220 | 221 | 222 | 223 | 224 | 225 | 226 | 227 | 228 | 229 | 230 | 231 | 232 | 233 | 234 | 235 | 236 | 237 | 238 | 239 | 240 | 241 | 242 | 243 | 244 | 245 | 246 | 247 | 248 | 249 | 250 | 251 | 252 | 253 | 254 | 255 | 256 | 257 | 258 | 259 | 260 | 261 | 262 | 263 | 264 | 265 | 266 | 267 | 268

mail to: pirton@mail.ru