Graham v. Cammann — 2 Cai. 168

Majority

p. 167

Graham against Cammann.

Headnote

A bill of exceptions does not lie to the charge of a judge of an inferior court: the remedy is by application for a new trial.

IN error on a bill of exceptions tendered to the mayor of the city of New York, on a charge given by him to the jury, in an action brought by the now defendant, against the present plaintiff, for the non-delivery, in good order and condition, of a certain quantity of coffee at Amsterdam, according to his contract; the exception was, that “ the said Edward Livingston, Esq., mayor as aforesaid, did then and there declare and deliver his opinion to the

p. 168

jury aforesaid, that the said several matters so produced and proved as aforesaid, on the part of the defendant, were not sufficient to entitle him to the verdict of the said jury; that the burden of proof to account for the deficiency of the coffee delivered lay on the defendant; that it was incumbent on him to show explicitly that he did fulfil his contract, except as far as he was prevented by perils of the sea; that the defendant was bound, not only to show that there was a loss of the coffee, by the perils of the sea, but how much was lost by those perils, or to give some reasonable account of the quantity ; that it was in the power of the defendant to have put a hand on board the lighters which landed the coffee, to prevent any loss therein ; that ■the court was clearly of opinion there was a deficiency of proof on the part of the defendant, which charged him with • the loss, and with these directions left the same to the jury, to find for or against the said plaintiff.”

The arguments of the counsel being all directed to the charge, whether it was proper or improper, it is unnecessary to detail them, as it was on another ground that the court rested their decision, which was delivered by

Without examining whether the charge of the mayor was ^correct or not, as respects the facts, it appears clearly to us that the plaintiff in error has mistaken his remedy. A bill of exceptions ought to be on some point of law, either in admitting or denying evidence, or a challenge, or some matter of law, arising upon a fact not denied, in which either party is overruled by the court. In the present case we can perceive no error in point of law in the charge given. The onus probandi of the loss of the coffee, as was stated to the jury, lay on the now plaintiff, and he was bound to show it lost by the perils of the sea, or to give some reasonable account; and although the facts might not warrant the conclusion that there was a deficiency of proof, yet the whole was referred to the jury. To have got rid of their

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finding, instead of a writ of error, there should have been application for a new trial, on the ground of its being a verdict against evidence. It is not for ns to say that such motion ought or ought not to have prevailed, but in the present case we cannot see that there has been error in point of law, and are therefore for judgment of affirmance.

Judgment affirmed.

Footnotes

[1] [1] See Coles v. Coles, 15 J. R. 159; St. John v. Standring, 2 J. R, 468 Wilson v. Reed, 3 J. R. 175; Mersereau v. Norton, 15 J. R. 179.