Root v. King — 6 Cow. 569

Majority

p. 569

Root against King and another.

ALBANY,

Feb. 1827.

Headnote

The defendants having made a case upon which to move for a new trial, and the plaintiff having proposed amendments, in which he did not object to the charge of the circuit judge as set forth in the case made; both the draft of the case and amendments were sent to fhe judge by the defendant for the purpose of being settled. The judge proceeded to settle the case accordingly. He struck out the charge as inserted by the defendant, and substituted one according to his own notes and recollection ; and made corrections in the facts of the case, without regard

Counsel have a right to be heard on settling a case before a judge.

A judge has a right to correct his charge as presented by a case, even though the parties may have agreed upon it.

p. 570

ing the time and place at which the defendants’ attorney had noticed the case for settlement; and without either party being present. The judge certified to this court that it was his practice to settle cases without the counsel of the parties being present; and that he substituted a new charge in this case, because the one inserted by the defendants was unnecessarily prolix, and materially incorrect.

A motion was now made to refer the case to the judge for review.

J. Blunt and J. Duer, for the plaintiff.

J. Sudain and E. Williams, contra.

Whatever course the parties may take in fixing on a judge’s charge, to be inserted in a ease, it is the right of the judge to see that it is correct. Neither the parties nor their counsel have a right, at their pleasure, to make out such a charge as will appear absurd or ridiculous. All they can require is, that the opinions expressed to the jury be substantially presented. But we think the judge erred in deciding that counsel should not be heard before him in relation to settling the ease ; and on this ground the motion must be granted.

The charge is always subject to the correction of the judge, though the parties may agree upon it.

The correction may be made at any time; and we would even stop an argument on the certificate of the circuit judge that his charge had been perverted. His charge need not be inserted in lime verba. The material parts alone are necessary. He should put into the case the substance of his opinion as expressed upon the law and the fact.

Motion granted.