193 Mass. 21 | Mass. | 1906
This is a petition to prove exceptions. The petitioner first filed a bill of exceptions, within the time prescribed by the statute. He then filed an amended bill as a substitute for the first, and the presiding judge allowed this bill, with three changes, first, an interlineation, by way of amendment, which stated clearly and correctly the facts referred to in the clause in which the interlineation was made, and secondly, a cancellation of two paragraphs, on the ground that the exceptions stated in them were not contained in the original bill, and were not filed in the clerk’s office within the time prescribed by the statute. See R. L. c. 173, § 106; Dorr v. Schenck, 187 Mass. 542 ; O’ Connell, petitioner, 174 Mass. 253; Currier v. Williams, 189 Mass. 214. The petition is to prove that part of the substituted bill which was thus disallowed by the judge. R. L. c. 173, § 110. The commissioner has found that the exceptions disallowed were not seasonably filed, and that the bill allowed by the judge is correct. The parties have, therefore, argued the questions presented by this bill.
Shortly before the argument in this court, the petitioner filed a motion to amend his bill of exceptions. It is familiar law that this court has no power to allow an amendment of a bill' of exceptions, and that, if there is any good reason for making such an amendment, the proper course of proceeding is to strike the case from the docket, and remit it to the court in which the exceptions were allowed, to enable the party to obtain an allowance of the amendment there. The motion on file does not suggest such action; but if it be taken as including a request for this action, there are good reasons why the motion should not be allowed at this time. In the first place, that part of the motion which relates to the declaration in set-off is immaterial, as the defendant was not entitled to introduce evidence in support of his declaration in set-off upon a hearing for an assessment of damages after a default. The declaration in set-off was in the nature of an independent claim, filed instead of bringing a
The papers referred to do not show on their face that the plaintiff Squier failed to perform his duty properly; and it is never necessary to put in evidence the general laws of the Commonwealth. Besides, after protracted and expensive proceedings upon the petitioner’s application to prove his bill of exceptions, this motion comes too late.
The record before us shows that the petitioner was defaulted in the original case, and on his motion the default was taken off. Afterwards he was again defaulted, and his subsequent motion to take off that default was denied. This denial was within the discretion of the presiding judge, and is not a subject for an exception. Rogers v. Ladd, 117 Mass. 334. Commonwealth v. Quirk, 155 Mass. 296.
The petitioner was not injured by the refusal of the judge to admit a copy of the paper removed from the original petition for a writ of certiorari. This was offered to prove that the attorney, Squier, was acting in bad faith. It was originally intended to be read and signed by the petitioner; it was so read and signed, and it had no tendency to show that the attorney was acting in bad faith.
It was within the discretion of the presiding judge reasonably to limit the cross-examination of the plaintiff by the petitioner. Rand v. Newton, 6 Allen, 38. Commonwealth v. Nickerson, 5 Allen, 518. Demerritt v. Randall, 116 Mass. 331. The petitioner cross-examined this witness from about noon until half past four o’clock, asking many questions which were excluded by the judge. About four o’clock he was told by the judge that he must close the cross-examination by half past four. There is nothing to show that this order was unreasonable, or that there was any evidence which the petitioner could reasonably expect to elicit by a further cross-examination of the witness.
It does not appear that the petitioner was injured by the refusal of the judge to admit the papers in the case of Barnes against Norton, administratrix, to prove that the pleadings showed on their face that certain statutes should have been set up in behalf of the petitioner by his attorney in that action. It cannot be assumed that the papers on their face would have
As we have already intimated, the exception to the refusal to admit a portion of the Revised Laws in evidence is not well taken. The court takes judicial notice of the laws without their introduction in evidence. The entry must be
Exceptions overruled.