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98.

FROM ITS PASSAGE.

ceptions to be sealed: (a) Approved January 16, 1798.-2 Litt. 31.

ted by the General Assembly, That when e any court and in any cause where appeal, persedeas lies to a higher court, doth alledge an ng that the justices will allow it; if they will not de that alledgeth the exception, doth write the same and require that the justices will put their seals in tes

(a) This act is a literal transcript of an act of Virginia passed on the 18th November, 1789, which will be found in Hening's Satutes at Large, vol. 13, p. 10.

(b) A court has the power to correct any error, or supply any omission in the preparation of a bill of exceptions, during the term the bill was taken. Givens v. Bradley, 3 Bibb, 195

2. When a party objects to improper testimony and is overruled, he need not make out a formal bill of exceptions at the time, unless ruled to do so; but may simply reserve the question and take advantage of it on a motion for a new trial. -Barger v. Cashman, 4 Bibb, 279.

Hallowell, 1 Mon. 131; Hughes v. Robertson, Ibid. 215; Hawkins' Heirs v. Lowry, 6 J. J. Mar. 246.

6. Exceptions taken during the progress of a trial should be reserved at the time they are made; but the court, in the exercise of a sound discretion, may give time until the next term of the court to prepare and present the bill of exceptions.-Gordon v. Ryan, 1 J. J. Mar. 57.

7. When a motion is made for a new trial and overruled, the regular practice is to except to the opinion of the court and take a bill of exceptions; but if by other bills of exception the whole evidence is spread upon the record, a formal exception to the refusal to grant a new trial is not necessary.-Gordon v. Ryan, 1 J. J. Mar. 57; Wallace v. Maxwell, Ibid, 452.

3. After the term has expired, the judge has no power to allow and sign a bill of exceptions in vacation, and if such a bill is copied into the record it will be disregarded by the appellate court.—Biggs v. Mcllvain's Ex'x. 3 Mar. 360. 4. If an exception is not taken in the court below to filing an amendment to a declaration and permission afterwards to withdraw it, the objection cannot be available in the court of Appeals-Jouitt, &c. v. Lewis' Ad'mrs. 4 Litt. 162.

And if the exception were taken, injury must be shewn to have been suffered by the defendant. Ibid.

8. When a bill of exceptions purports to contain the whole evidence given on the trial of a cause, an amendment of the record, at a subsequent term, by showing more testimony was given on the trial than the bill contains, is inadmissible and a nugatory act.—Adkinson v. Stevens, 7 J. J. Mar. 237.

5. Exceptions to the opinion of the court should be taken at the time the decision is given, but it is not necessary that the bill of exceptions should be then formally made out and tendered. It is discretionary with the court to have the bill of exceptions then prepared or give further time to do so. And when the bill appears to have been made after the trial, the court of appeals will presume that time was given.-Hallowell v.

9. Exceptions should be taken as the opinions are respectively rendered, though the right being then reserved, they may be written out and signed at any time during the term. And if the bill, signed after the trial, uses the present tense "excepts" implying that the exception is then first taken, still if it be signed without objection from the adverse party, it will be presumed by the court of appeals, that the right was reserved at the proper time.-Foree v. Smith, 1 Dana, 151.

timony thereof, the justices, or the greater part of them present, (c) shall so do; (d) and if such higher court, upon complaint made of the said justices, cause the record to come before them, and the same exception be not found in the roll, and the plaintiff show the exception written with the seals of the justices put to it, the justices shall be commanded that they appear at a certain day, either to confess or deny their scals, and if the justices cannot deny their seals, they shall proceed to judgment, according to the same exception as it ought to be allowed or disallowed. (e)

(c) A bill of exception to the opinion of the county court must be signed by a majority of the justices who sat upon the trial, otherwise it will not avail in the court of appeals.-Kennedy v. Trustees of Covington, 4, J. J. Mar. 543.

2. If upon deciding a controversy a majority of the justices abandon the bench and will not remain to sign a bill of exceptions, application may be made to the bye-standers, and a bill of exception be prepared by them.-Kennedy v. Trustees of Covington, 4 J. J. Mar. 543.

(d) The court have no right to require of the party to withdraw his exception to their opinion, (in refusing him leave to add additional reasons for a new trial) before they will hear his motion upon the grounds previously entered and filed.— Reed v. Miller, 1 Bibb 143.

2. When a party resists the introduction of testimony and is overruled and offers an exception, his adversary may waive the evidence, and the exception shall not be allowed.-Woods v. Kennedy, 5 Mon. 178; See Given v. Bradley, 3 Bibb, 195.

(e) An exception to the opinion of the court must show its relevancy to the case.-Brown v. McConnel, 1 Bibb, 266; Beauchamp v. Tennel, Ibid. 442.

2. Upon exception to the opinion of the court for refusing leave to withdraw a general demurrer it is not sufficient to state the party "offered to plead to the merits"--the plea should have been offered, so that the court might know that it was to the merits.-Violett v. Dale, 1 Bibb, 145.

3. A party excepting should spread the whole evidence, touching the point decided, on the record; if he fail to do so every intendment will be indulged in favor of the judgment.-Hodges v. Biggs, 2 Mar. 222; Taylor v. Mayo, Ibid, 251; Payne v. Bettisworth, Ibid, 428; Shryock v. Morton, Ibid, 563. See also, Blue v. Kibby, 1 Mon. 196.

4. When the judge of an inferior court adds to a bill of exceptions, in a writ of error coram

What pro

ceedings may

be had if the

same be omit

ted from record

robis, that other objections to the notice, &c. were taken, without stating what they were, the court of appeals will presume they were sufficient to justify his judgment.—Dorris, &c. v. Calow & Son, 2 Litt. 371.

5. A bill of exceptions to the decision of the court on a plea of nul tiel record, must show the evidence on the trial, otherwise the court of appeals will not disturb the decision of the inferior court.-Fowler v. Com'lth, 4 Mon. 129.

6. When it appears from the bill of exceptions that other testimony was given beside that detailed, it will be presumed that the omitted evidence justified the decision of the inferior court. Cravins v. Gant, 4 Mon. 126.

So if the bill of exceptions does not state the whole evidence.-Frazier v. Harvie, 2. Litt. 182.

7. A bill of exceptions to a decision of the court in overruling an objection to improper testimony, must not only show that the objection was overruled, but should also show that the improper evidence went to the jury, otherwise the court of appeals will not reverse the case.→ Thomas & ux. v. Tanner, 6 Mon. 53.

8. Though a bill of exceptions does not purport to give the whole testimony, yet if it clearly shows that illegal or improper testimony was admitted as the foundation of the judgment, it manifests such error as requires revision.-Rudd v. Thoms, 1 J. J. Mar. 300.

9. A bill of exceptions taken to an opinion of the court in giving instructions will not be ground of reversal, unless it appear from the evidence incorporated in the record, or from the pleadings, that the party has been prejudiced thereby.-Harrisons v. Baker, 1 J. J. Mar. 318; Beauchamp v. Morris, 1 Mar. 521.

See an application of the same principle to a case where incompetent testimony was admitted. Hodges v. Crutcher, 1 J. J. Mar. 504.

10. If the bill of exceptions does not purport to contain the whole testimony, the court of appeals will not reverse a decision of the court be

Bill of excep

tions certified by bystanders

to be made part of the record.

Remedy, if court refuse this privilege. When court

1800.

IN FORCE THREE MONTHS FROM ITS PASSAGE.

AN ACT to amend the laws of proceeding in Civil Cases: Approved Dec. 18, 1800. 2 Litt. 402.

SEC. 4. And be it further enacted, That if any inferior court do refuse to sign a bill of exceptions tendered to them, and the same is certified and signed by the bystanders as the law requires, (ƒ) the court shall permit the said bill to be filed and become a part of the record; and if they refuse, the court of appeals may, when such cause is brought before them by writ of error or appeal, upon proper affidavits of such refusal, in their discretion, admit such bill of exceptions as a part of the record. When the court shall certify as son for not sign- cause of their refusal to sign such bill, that its statement is not ing such bill, true, (g) and by-standers shall sign the bill, certifying its truth, affidavits may be taken by either party as to its truth, during the term, or if the cause be tried on the last day thereof, then within five days thereafter, and in either case, shall be deposited with the clerk, and shall be certified with the record; but neither party shall file more than five such affidavits.

states as a rea

that it is untrue, affidavits may be taken by both parties.

low in refusing to grant a new trial on the ground that the verdict was contrary to evidence.-Sanders v. Crawley, 2. J. J. Mar. 123; Norton, &c. v. Sanders, 1 Dana, 14.

11. A statement in a bill of exceptions which is enrolled by order of the court, is as much a part of the record as any other recorded history of the proceedings and is equally incontrovertible. Beauchamp v. Mudd, Har. 163.

(f) If a court refuse to sign a bill of exceptions, a certificate of the by-standers that it was presented to the court and that the judge refused to sign it, is not sufficient to give it credence, the by-standers should certify that the statement in the bill was true.-Wright v. Nichols, 1 Bibb, 298; Wickliffe v. Payne, 1 Bibb, 414.

(g) If by-standers certify that the statement in a bill of exceptions is true, and the court admit it to record without certifying why they did not sign it, it will be taken as true on the certificate of the by-standers, but if the court assign as a reason for not signing it, that its statements are not true, the certificate of the by-standers must be supported by affidavit.

And if the judge admit the bill of exceptions to record and certify, as cause of his refusal to sign it, that its statement is garbled, and certifies

wherein the statement in the bill of exceptions differs from the evidence given, and seal and certify his statement, the bill of exceptions, as corrected by the certificate of the judge, will be taken as part of the record, although the bill of exceptions is not certified as true by the bystanders nor supported by affidavit.-Wright v. Nichols, 1 Bibb, 298.

See this case for a full discussion of the different provisions of the above section.

Effect of Bill of Exceptions taken on a former trial.

1. A fact stated in a bill of exceptions as proved, for the purpose of obtaining an opinion of the court on a point of law, cannot be used as evidence of the fact in a subsequent trial.— Beeler v. Young, 3 Bibb, 522.

2. A bill of exceptions taken on a former trial, is not competent on a subsequent trial of the same suit, to prove the facts in issue, unless the attendance of the witness cannot be procured. But it may be used to prove what a witness examined on both trials swore to on the first, to discredit him.-Baylor v. Smithers, 1 Mon. 6.

3. Bills of exception taken on a former trial to the instructions of the court, and admission of testimony, will not avail the party in the court of

TITLE 29.

BILLS OF EXCHANGE.

1798.

IN FORCE FROM THE FIRST DAY OF MARCH.

AN ACT to reduce into one, the several acts concerning Bills of Exchange: Approved February 6th, 1798. 2 Litt. 101.

WHEREAS foreign bills of exchange are accounted in the course of all payments as ready money, and it is reasonable for advancing the credit and circulation of such bills, to make the same a sufficient security, and to expedite the recovery of money thereupon:

Preamble,

Foreign bills protested

for

non acceptance

or non payment to bear 10 per centum interest

from the date.

SEC. 1. Be it therefore enacted, That where any foreign bill of exchange is or shall be drawn for the payment of any sum of money in which the value is or shall be expressed to be received, and where such foreign bill is or shall be protested for non-acceptance or non-payment, the same shall carry interest from the date thereof, (a) after the rate of ten per centum per annum, until the money therein drawn for shall be fully satisfied and paid: but lest any person having such foreign bill should, for the sake of the said interest delay negotiating the same, or if after it shall be protested, shall from the date not demand payment of the drawer or endorser thereof, it is hereby declared, that no person whatsoever shall pay more than eighteen presented to the months interest from the date of any bill to the time it shall be pre. sented protested to the drawer, endorser or endorsers thereof.

SEC. 2. And be it further enacted, That it shall be lawful for any person or persons having a right to demand any sum of money upon

appeals, in a writ of error to the last trial and judgment.-Harrisons v. Baker, 1 J.J.Mar. 318.

Bills of Exception in Chancery.

1. Depositions must be excepted to in the circuit court, and on the hearing the judge ought to decide on the objection and admit or exclude the deposition; and if rejected have it noted as excluded, whatever may be his decree on the merits. Should he fail to decide on the objection, the court of appeals will consider it as waived.Paul, &c. v. Rogers' Adm'r. 5 Mon. 164.

But interest for 18 months only to be given

of the bill to the time it is

drawer.

On protested foreign bill of exchange, prin

chancery, is borrowed from the common law courts, and they should embody the testimony excepted to, that the court of appeals may see that the exception was disposed of by the court below, and, on what grounds.—Ibid.

(a) Endorsements on negotiable notes of the grade of foreign bills are embraced by the above statute concerning interest; therefore the court may in an action of debt against such endorsers give judgment for interest, though nominal damages had been assessed by a jury.--Reid v. Bank

2. Our practice of taking bills of exception in of Kentucky, 1 Mon. 93. 33

VOL. I.

drawers & en

dorsers jointly, or either

of

them separate

ly.

cipal, interest any protested foreign bill of exchange, to commence and prosecute and charges of an action of debt for principal, interest and charges of protest, protest recoverable against against the drawers and endørsors jointly, (b) or against either of them separately, and judgment shall and may be given for such principal, charges, and interest, after the rate of ten per centum per annum as aforesaid, to the time of such judgment, and legal interest upon the money recovered, until the same shall be fully satisfied. SEC. 3. And that all foreign bills of exchange which are or shall Protested be protested, shall, after the death of the drawer or endorser thereof, foreign bill of equal dignity be accounted of equal dignity with a judgment; and the executors with judgment, or administrators of every such drawer or endorser, shall be comand to be paid by executors of pelled to suffer judgment to pass against them for all debts due upon drawer or en protested foreign bills of exchange, before any bond, bill, or other other debts of debt of equal or inferior dignity, (c) under the penalty of being liaequal or inferior ble to pay the same out of their own proper goods.

dorser before

dignity.

bills for five

SEC. 4. Be it enacted by the General Assembly, That if a bill Domestic of exchange for the sum of five pounds or upwards, dated at any pounds, or up- place in Kentucky, drawn upon a person at any other place therein, wards, how to expressed to be for value received, and payable at a certain number be protested.

Before whom.

Form of pro

test.

of days, weeks or months after date, being presented to the person
upon whom it shall be drawn, shall not be accepted, by subscribing
his name with his proper hand to the acceptance, written at the foot
or on the back of the bill, or being accepted in that manner and not
otherwise, shall not be paid before the expiration of three days after
it shall become due, the person to whom it shall be payable, or his
agent or assigns, may cause the same to be protested by a notary
public, or if there be no such, by any other person in the presence
of two or more credible witnesses, for non-acceptance, in the form
or to the effect following, written under a fair copy of the bill:
"Know all men that I
on the

day of

at the usual place of abode of the above named
to him the bill of which the above is a copy, and which said
did not accept, whereof I the said

(b) By the law merchant there must be several actions against the drawer, endorsers and acceptor of a foreign bill of exchange, but the above statute has given a joint action as well as several against the drawers and endorsers; but in such action the declaration must demand the debt, interest, and costs of protest, or it cannot be maintained.-Cresson v. Williamson, &c. 1 Mar. 455. Sanders, &c. v. Bank of Kentucky, 2 Mar. 348. Johnson v. Same, 5 Mon. 120. Noel, &c. v. Same, 7 Mon. 400. Pendleton, &c. v. Same, 2 J. J. Mar. 149.

2. Under the above act, the action must be separate against each obligor, (maker and endorsers,) or joint against all; but in the latter, in

presented

do hereby protest the

case of the death of any, the action must survive against the surviving obligors.-Farmers & Mechanics' Bank v. Turner, 2 Litt. 17.

3. If in suit on a bill of exchange, the jury render a verdict for more than the principal, interest, damages and costs, the court should ex officio set it aside.-Offut v. Stout's Ad’mrs. 4 J. J. Mar. 332.

(c) A note discounted by the Bank of Kentucky is not entitled to a priority of payment over debts of equal dignity by virtue of the above clause, though placed by the charter upon the footing of foreign bills of exchange.-Tilford, &c. v. Bank of Kentucky, MSS. Opinion, Spring Term, 1834.

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