Majority
Headnote
' ®EAGH brought debt against Jones and others, on an appeal bond, in the C. P. of Monroe; and assigned two breaches; 1. That the appellant did not prosecute with due diligence, wherefore the appeal was dismissed with costs; and he had not paid them; 2. That he did not proseeute, &c., wherefore the appeal was dismissed, and he *had not paid the damages before the justice, or surrendered himself, &c. On the trial, after the evidence closed on both sides, it was conceded there were no facts m dispute: aQd the defendants contended that the plaintiff could not recover, because the facts did not prove a want of due dili 1 1 gence; and if they did, still there were no costs to be paid, award of costs being, as they contended, without jurisdiction and void; and that he could not recover on the second breach, because no execution had been issued by the justice. The court decided that there was a want of due diligence; but the plaintiff could not recover on the first breach, because the award of costs was void; nor on the second, because no execution had issued. Beach excepted to this .decision. The court charged the jury according to their decision; and the plaintiff drew up a bill of exceptions, containing such facts only as presented the points which the court decided, and to which the exceptions were taken, but left out material facts going to show that though the court might have erred in their decision, jet the plaintiff could not recover by reason that there was no want ofThe decision of the judge, agreed upon to settle the bill of exceptions, was correct; and he gave the true reasons why the additional matter proposed should not be inserted. We have sometimes sanctioned the insertion of facts not entering into the point decided, upon the ground that they came from the party excepting; and operated as a waiver of the exception. Such was the late case of Jackson v. Tuttle, (7 Cowen, 364,) where the party proposed to insist, and there was reasonable ground for insisting, that the proof which his opponent offered, and which was proposed to be inserted, supplied the very defect which formed the point in the bill. But that case went on the ground of waiver. We have not gone farther; and it is not only unnecessary, but inconvenient to load a bill of exceptions with extraneous matter. Everything is so, beyond what may be essential to present the naked point of law, which is the true office of a bill of exceptions.[1]
Motion denied.
[1] [1] In settling the hill, counsel have a right to be heard before the judge; and the judge has a right to correct his charge, even although the parties may have agreed upon it; (6 Cowen, 569;) and he has also a right to strike *125 out suóh parts of the evidence as are immaterial and unnecessaiy to present question of law raised by the bill 6 Wendell, 1Q3. So, also, he may insert such proof as goes to waive the exception,; as, where the judge ruled that the plaintiff in ejectment'had made out a prima facie title In 'GK, under whom he claimed, and the defendant excepted, and afterwards the defendant proved that he himself claimed under Q-., it was held, that the judge, in . settling'the-bill of exceptions, might insert the defendant’s proof, so that the .plaintiff might insist upon it, as a waiver of the exception. 7 Oowen, .364. So, also, where the plaintiff asked one .of the defendant’s witnesses, on .cross-examination, whether certain real estate was not encumbered, which Vas objected to, as relating to a matter of record, but the answer, notwithstanding, was received, and excepted to, upon which (the plaintiff immediately proved the incumbrance, by evidence of record, the court allowed the ■exception as in itself .fatal, but received the evidence, which followed, as equivalent to a waiver, though the first evidence was not waived in so many "words. '6 Oowen, 449. So, where the defendant offered two witnesses, who were objected to and rejected, to which the defendant excepted, upon which the plaintiff waived his objection, but the defendant refused to examine the witnesses, the court said it was Immaterial whether the judge had decided right or wrong, for the defendant was not injured by the .decision. 7 Serg. 6 Rawle, 218 . And upon the authority of these cases, in an action of trespass, where the plaintiff rested without.proving anything against one of "the defendants, upon which he moved that the jury be directed to pass upon the-issue as against him, which was refused, and the defendant excepted. Irving, first judge H. Y. Com. Pleas, held that the evidence given in a subsequent stage of the cause, going to charge him, must be inserted in the bill, as tending "to show that the party was not prejudiced by the decision. Fowlds & Bell v. Kerrison & Ellis, MS., Oct. 1827. So, also, where the judge improperly refused to non-suit the plaintiff, but the bill of exceptions contained subsequent evidence,.supplying the defect! the court refused to reverse the judgment on that ground. 6 Cowen, 484; 7 Wendell, 377.