7 How. Pr. 219 | NY | 1852
Mr. Hill insisted that the only remedy of the appellant was to discontinue the present appeal. He could then apply in the court below to set aside the judgment, and allow the bill of exceptions to be amended; and if the application was granted, the cause should be reheard in that court upon the amended bill, and a new judgment entered. The practical result of the present application, if successful, will be, that the cause will be heard in this court upon a bill of exceptions which the court below have never passed upon or seen. Non constat that they did not understand the law in respect to the sufficiency of the exceptions, precisely as settled by this court, and gave judgment on that ground. If so, and the bill of exceptions is hereafter amended so as to take away that ground, the judgment may be reversed here, though in strict accordance with the law when rendered. In any view of the matter the cause should be here upon the identical record which was before the court below.
The Court granted the motion of the appellant in the following form.
It being alleged on oath, on the part of the appellant, that certain questions of law were actually and distinctly presented by exceptions taken at the trial in this cause and were decided upon the bill of exceptions in this cause as settled, at the general term of the Supreme Court, on the rendering of the judgment appealed from, although the said questions do not sufficiently