Mills v. Simmonds

Davison, J.

This was an action commenced by process of foreign attachment. Mills was the plaintiff below, and Simmonds the defendant. The complaint is upon an account consisting of various items, amounting in the aggregate to 1,794 dollars. Proper issues being made, the case was submitted to a jury, who found for the plaintiff 10 dollars. New trial refused, and judgment.

The record shows that the cause was tried on the 23d of February, 1853; and on that day a bill of exceptions was taken and filed. The bill, after stating the names of the parties, &c., proceeds—

“ The following evidence being before the jury, viz., three sets of depositions, the Court charged the jury as follows: (here insert the charge in the handwriting of the judge). To which the plaintiff objected. The Court overruled the objection, to which ruling the plaintiff excepted. And also, on said trial the* plaintiff requested the Court to give the following charge: (here insert in the handwriting of Jacoby). Which the Court refused to do, and the plaintiff excepted to said last ruling,” &c.

The clerk, in making a transcript of the record for this Court, has inserted what purport to be depositions given in evidence on the trial; also instructions given, and an instruction refused by the Court. But these alleged rulings are not properly before us; because, under the rules of practice, as they stood when these exceptions were taken, the clerk had no right to make such insertions in a bill of *465 exceptions, unless authorized to do so by agreement of the parties entered upon the record. The depositions, charges given, and charge refused should have been copied into the bill at the time it was signed by the judge. 4 Blackf. 19 . —6 id. 167 . — 7 id. 461. There being, then, no proper bill of exceptions upon which to found the assigned errors, the appeal must be dismissed.

L. C. Jacoby, for the appellant. D. H. Colerick, for the appellee.

Per Owriam. — The appeal is dismissed with costs.