3 Wend. 312 | N.Y. Sup. Ct. | 1829
By ike Court,
There is no established rule as to the settlement of bills of exceptions. In this case the points upon which the questions arose were stated at the circuit and noted by the judge, but the opposite party was not served with a copy of the bill previous to its being sealed) nor had he notice of the time and place of its settlement. This we have repeatedly intimated as necessary, to give the opposite party the opportunity of proposing amendments. (3 Cowen, 33; 7 Cowen, 102; id. 107;) although the question has not been distinctly presented until now. It may therefore well be doubted whether the bill of exceptions was regularly obtained; yet as both parties have acted in good faith, and as the practice perhaps cannot be considered as settled, we think this a fit occasion to say what should be the practice in such cases, while at the same time we secure to each of these parties the fruits of the diligence, by making such a disposition of the motions as that the plaintiffs shall not loose the lien they have obtained by the judgment and execution, nor the defendants the benefit of their exceptions. In cases where exceptions are taken at the circuit, if the bill be not sealed at the trial, the same practice should prevail in the settlement of the same as is provided by the general rules of the court for the making and settlement of cases. The party excepting should prepare his bill of exceptions, and within two days after the trial serve a copy thereof on the opposing party, who, within four days thereafter should propose his amendments thereto, and serve a copy on the party who prepared the bill of exceptions, and then such further proceedings may be had as are had in the settlement of cases. The bill from the time of its delivery, with the
In the present case we order that the judgment and execution remain, but that all proceedings thereon be stayed until, &c., and that' the bill of exceptions be referred to the circuit judge to be settled, on a notice of eight days to be given by the defendants, to the end that it may be argued or otherwise disposed of.