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I, A W OF E V I D E N C E.
BY ESEK COWEN,
ONE OF THE JUDGES OF THE SUPREME COURT OF THE STATE OF NEW YORK : .
Entered according to the Act of Congress, in the year eighteen hundred and thirty-nine, by G O U L D, B. A N K S & C o . - in the Office of the Clerk of the Southern District of New-York.
Ch. 9..] and Demurrers to Evidence. 785
tions lies in such case. (Champion v. Brooks, 9 Mass. Rep. 228.) Parsons, C. J. in the case last cited, says: “The statute giving an appeal must be construed as taking away the remedy by error in all cases in which the party aggrieved had opportunity, and might have appealed. This construction, as a general rule, was settled in the case of Savage v. Gulliver, (supra.) And a case in which the party, against whom the issue is found, has tendered and had allowed a bill of exceptions, is within the reason of the rule. On appeal from a judgment rendered on verdict, amendments may be made in the declaration or pleadings, on reasonable terms, when the justice of the case requires it; and in consequence thereof, a new issue in fact may be joined and tried by the country. As no bill of exceptions will be necessary in that case, no disputes can arise respecting the manner in which it may be drawn, or the conduct of the judge below in allowing it. But if error lies instead of an appeal, because a bill of exceptions is allowed, all this useful and discretionary power of the court cannot be exercised; and our only authority will be to affirm or reverse the judgment of the court below. And if the error, on which a reversal is ordered, is such that a new trial may be had at the bar of this court, yet it will be a trial only of the former issue. Where an appeal lies, the judge below is not obliged to allow a bill of exceptions: and it would be unreasonable, that the party prevailing below should be obliged, against his consent, to submit to the less beneficial proceedings by error in the superior court, instead of an appeal, merely because the judge thought proper to indulge the adverse party with the allowance of his bill of exceptions, when he had no legal claim to any such allowance.”
The case cited in the text was decided upon the ground, that the court of chancery has full control over the issue, and may grant a new trial, if the former one was in any degree unfair or erroneous. In Pennsylvania, on an issue directed by the register's court to try the validity of a will, it became a question, whether the statute authorizing issues to be directed by such court, and tried in the common pleas, precluded a writ of error, and consequently a bill of exceptions. The supreme court held it did not; and per Tilghman, C. J. : “I can see nothing in the act of assembly which looks like an intention to place the register's court on the footing of the chancellor of England, who exercises the right of ordering a second trial if he is discontented with the first. Now, unless that court can review the proceedings of the court of common pleas, it would be a great defect in the administration of justice, if errors could not be corrected in this court.” (Wansant v. Boileau, 1 Binn. Rep. 444, 447.) It seems, judgment had been rendered by the common pleas in the above case: if it had been otherwise, the chief justice admits there would have been a technical difficulty hard to be got over. For it is a well settled principle, that a writ of error only lies where a court of record have rendered final judgment, or made an award in the nature of a judgment. (Id. Commonwealth v. Judges of the Common Pleas, 3 Binn. Rep. 273,