Jackson ex dem. Hills v. Tuttle

Headnote

The circuit judge ruled that the plainmltoadmadt out a prima under^whom andthfdefend’ ant excepted,

himselfthat he claimed under

that in afterwards set--^exceptions) should insert the defendant’s proof so that wh© plaintiff might insist upon it as a waiver of the

it would be a wsivsr

j. A. Spencer moved for a rule to refer a bill of excen- . ' r tions taken by the aeienaant at the circuit, to the circuit judge for correction.

At the trial, the lessor of the plaintiff proceeded to prove what he insisted was prima fade a title in G., under whom endued; and the judge ruling in his favor, the defendant excepted. Afterwards, the defendant proceeding with proof, it appeared that he derived title from G., the same Person under whom the lessor claimed. The dispute being upon the title of this person, the plaintiff insisted that the defendant’s proof operated as a waiver of his exception; and, on afterwards settling the bill before the judge, claimed to have such proof inserted in the bill. This the judge declined; stopping with the plaintiff’s proof, so as to present his evidence and the exception, without the matter . . . detuned 9.S Qj W&1VCI*.

cited Tidd. Pr. 788; id. 786, 7; Bull. N. P. 315; 1 Archb. Pr. 187, 8; 1 R. L. 319, s. 4; 6 Cowen, 455. He gaid non constat, if the defendant had not fiirnished t he proof, the plaintiff himself might not have done it. He had a right to do so; and not to hazard the exception. Having the defendant’s own evidence, he might rely upon

that. He instanced a witness objected to and excluded for interest, an exception taken and sealed on the spot, and the objection afterwards waived; the counsel who took the exception still refusing to swear him. Or suppose him sworn, after exception for interest, which is overruled; and he is then released and sworn again to the *same facts. So a deed offered and received with a defective certificate of acknowledgment; exception; and then it is proved by a subscribing witness, called either by the counsel who offered the deed, or the excepting counsel. It cannot be, he said, that in such cases the exception should still be held available.

The court directed this

Rule : “ Ordered that the bill of exceptions heretofore settled in this cause, be referred back to the circuit judge who tried the cause, with the opinion of this court expressed, that any evidence given in the cause subsequent to the exception, which is claimed by the plaintiff as a waiver of the exception, should be inserted in the bill of exceptions.”^[1]