Midberry v. Collins

Whereon th* ^teu,!¡"( )“ea,L mandma‘?> the judges of» mm pieaTT» aim of exceptions>01’ show cause, ike. it appeared, that . , the hill of exceptions was not tendered to the judges at the trial, but was presented to them individually, at different times, after the court had adjourned for the term, this court refused to grant; & peremptory mandamus. The facts on which a bill of exceptions is taken must be reduced to writing at the time, and pre» stinttid distinctly to the court, during the trial, or, at least, during the continuance of the term.

AN alternative mandamus had been issued, pursuant to a rule of this court, directed to the judges and assistant justices of the court of common pleas of Chenango county, commanding them to sign and seal a bill of exceptions, which had been tendered by the defendant in the above cause, or show cause, &c. One of the judges signed the bill of exceptions, and two of them made a separate re-ten, under their hands and seals. The return stated that the cause came on to be tried, at the last October term, before the Chenango common pleas; that several of the material tacts stated in the bill of exceptions were incorrect and untrue ; that the bill was not tendered at the trial, but presented to the judges individually, at different times, after the court had adjourned for the term, and the statements in the bill were found to be untrue; that the court did not decide that two of the jurors should be excluded as witnesses, on account of their interest, but referred the question of their competency to triors; that the contract between the overseers of the poor of the town was offered in evidence, and read, only to show the division of the poor money, and not read or relied on as evidence of the contract on which the suit was brought; that the court did not refuse, as stated in the bill of exceptions, to permit Calkins to swear that the contract was conditional, but he and two other witnesses testified that there was no condition; that the court did not refuse to charge the jury on the law and the fact, but did so charge them; that from the length of time elapsed since the trial, the judges cannot recollect all the material facts in the case with sufficient certainty. On reading this return, a motion was made for a peremptory mandamus.