Marsh v. Rulifson — 7 Cow. 102-2

Majority

p. 102-2

Marsh against Rulifson.

NEW YORK,

May, 1827.

Headnote

Where a bill th™of R^s settled at should bé set-tied on notice of the time and oppomt^attor ney.

not done, the courfc.t? whl?'? will not, for get^aside^the but w-ill allow 1110 be referred and noticed °n dUB

Oh error from Schenectady, O. P.

I. Seelye, for the defendant in error,

moved to set aside the bill of exceptions, on which the writ of error founded. The motion was grounded on affidavits that certain exceptions were taken by Marsh, the defendant -x"below, i -i in i mi n • i at the trial; and, afterwards, a bill of exceptions served on the attorney of the plaintiff below, who proposed amendments. That in the next vacation, the bill and amendments were transmitted by the attorney of the plaintiff below, to the judge who took the notes upon the trial, by him corrected; and at the next term the bill was delivered to the court, who examined, and signed and sealed it. But no notice of the time and place of settling the bill by i i „ i ■ i i i court, was .served on the attorney for the plaintiff below, The bill was signed by the judges in open court.

Seelye

cited 19 John. 246 , 3 Cowen, 32.

A. C. Paige, contra.

Notice of the time and place of settling the bill, should have been given to the attorney of the plaintiff below. Let the bill be presented to the judges of the court below, and settled on the proper notice, in term.^[1]

Buie accordingly.

Footnotes

[1] [1] The following is the present practice in the state of New York: If the oari*- who proposed the exceptions is not willing to adopt the amendments *103 served on him by the opposite party, he must, within fom days after tin rece¡pt of the amendments, give notice to the other party to appear before the justice who tried the cause, within a convenient time, to have the excep^ons an^ am6ndments settled. The time for settling the exceptions and amendments must be specified in the notice and must not be less than four, nor more than twenty days after the service of the notice. The parties have the right to be heard by counsel before the justice, and the justice will amend and correct the exceptions according to the facts. He may correct his charge, even although the parties have agreed upon it, and he may also insert such proof as goes to waive the exception. The exceptions having been settled by the justice, have them engrossed and folioed. Eormeily it was necessary that the exceptions should be signed and sealed by the judge, and he might be.compelled to do so by mandamus. But this is no longer necessary, it being provided that the exceptions need not be sealed or signed. Monell’s Pr. 113.