author: Christiancy J.

text:
    Daniel Sheehan v. John M. Dalrymple.

      Joint owners of a vessel: Liability to 'each other for repairs. Joint owners of a vessel are bound to pay each Ms own share of the expense of repairs ; and, without clear evidence of a special agreement to the contrary, the law will imply a promise to pay accordingly.
    Expenditures made in Canada by one of two parties jointly interested, and paid in Canada money, .entitle the party who made them to recover at the rate of what the Canada money cost, provided it did not exceed the market rate in our currency.

      Charge of the Court: Ambiguous: or immaterial. When a charge is expressed in ambiguous language, if it be apparent, in view of the evidence, that ihe jury could not have been misled, the judgment rendered on the verdict will not be disturbed.
    Nor, when the charge is erroneous, if it be clear, that the plaintiff in error could not have been injuriously affected by the error.

      Heard October 12.

      Decided October 19.

    Error to Wayne Circuit.
    Dalrymple brought assumpsit against Sheehan in the Circuit Court for the County of Wayne, and declared on the common counts for money loaned to defendant, and expended in making repairs upon a vessel jointly owned by them. The defendant pleaded the general issue and gave notice of a set off, and that the items set forth in plaintiff’s bill of particulars were partnership debts contracted by the plaintiff and defendant as partners, mutually interested in the business of the brig Sunbury,• and part owners of said brig, for, and on behalf of which they were contracted.
    The jury found for the plaintiff; and the defendant below brings the judgment entered on the verdict into this court by writ of error.

      Moore & Griffin, for plaintiff in error.

      L. Bishop, for defendant in error.
   Christiancy J.

Plaintiff and defendant were equal owners of the brig Sunbury, which they purchased in the winter of 1868 while she was lying at Port Robinson in Canada, which needed repairs before bringing her out, and which they intended to run and did run during the following season of navigation, Sheehan, the defendant below, being the managing-owner; and the plaintiff advancing money from time to time for such repairs, as well as for crockery and tinware and other small items of expense which became necessary in fitting her out for the season’s business, for taking out the necessary papers at the Custom House, and one small item of expense incurred in running the vessel.

When the various bills were presented, the half of which is here in controversy, or it became necessary to pay them, the defendant called upon the plaintiff ftA money to pay them, and he handed the whole amount to the defendant to meet the bill, or paid it himself at the request of the defendant.

Plaintiff claimed on the trial, and his testimony tended to show, that the half of each of the sums so paid by him was, by tbe understanding and agreement of tbe parties, a loan to the defendant which he was to repay to the plaintiff.

On the part of the defendant, it was insisted in the Court below, and the same ground is relied upon here, that there was no such understanding or agreement, but that the parties were partners, that the sums were advanced in the partnership business, that the partnership accounts were unsettled, and thérefore the plaintiff’s action could not be maintained.

There was no evidence tending to show that they purchased or owned the vessel as partners. As part owners of the vessel they were therefore tenants m common and not partners; and since the repairs in question became a part of the vessel, each would be bound to pay his own share of the expense of such repairs. And without clear evidence of an express agreement to the contrary, the law would imply a promise by the defendant to repay to the plaintiff any sum paid by the latter beyond his half of such repairs, as for so much money paid for the defendant, and at his request.

The defendant, who was sworn in his own behalf, gave evidence tending to show that the parties were partners in the business of running the vessel for the season, each to have one-half of the earnings after the bills were paid, and that they were to fit her out for that purpose as partners —that is, as we understand the testimony, to furnish the necessary outfit for running the vessel, such as crockery, tinware, etc.

So far, therefore, as depended upon his testimony, it would be clear that the small items of §4 14 for expenses of defendant’s trip on the business of the vessel, §5 for crockery, §1 18 for a tin pan, and §61 73 paid at the Custom House for the vessel’s papers, would be partnership items, for which the plaintiff could not recover, without some express agreement of the defendant to pay.

But we do not think there was anything in the defendant’s testimony, or any other evidence in the cause, which when carefully considered, tends to show that the parties were partners in the expenses of the repairs in question. Nor that the plaintiff, as to the sums paid by him for such repairs, beyond his half, agreed to look to the vessel or its earnings alone for reimbursement. There was, therefore, in our opinion, no evidence tending to defeat the plaintiff’s claim for the surplus beyond his share, paid by him for such repairs. And this included much the larger part of the contested portion of his claim — all of it, in fact, except about thirty-six dollars. In this state of the evidence the counsel for the defendant (plaintiff in error) requested the Court to charge, in substance, that if the jury should find from the evidence that the second item in the plaintiff’s bill of particulars — which was for repairs — was paid out for the benefit and use of the vessel, plaintiff could not recover.

If, by payment “for the benefit and use of the vessel” was here intended' a payment made with the understanding that plaintiff was only to look to the vessel or its earnings for reimbursement, there was no evidence in the cause to warrant such a charge. If the request was intended to assert that the plaintiff could not recover because the money was used to repair the vessel, such a charge would have been bad in law: and in either view the charge would have been erroneous. The Court did, in fact, err in the qualified charge given in answer to this request, by assuming that it was competent for the jury to find, that the advance in question (for repairs) was made directly to, or on the sole credit of the vessel; since there was no evidence upon which such a fact could have been found; but this being an error operating in favor of the defendant, he cannot complain of it.

Defendant also asked a charge that “to entitle the plaintiff to recover, lie must satisfy the jury that there was a special agreement between the parties, that the several items paid out by the plaintiff, were a personal loan to defendant as to half the amount; that the burden of proof was upon the plaintiff to show this.”

This was asking a general charge applicable alike to the items for repairs and those for the outfit and running of the vessel. A charge which, though right as to the latter, would have been wrong as to the former, and therefore, as a whole erroneous.

But the Court in the qualified charge in answer to this request refused to charge that such special agreement was necessary, and held that an implied agreement to this effect would be sufficient. We think from the context and an examination of the whole charge, that the Court did not mean, by an implied agreement, the agreement of a defendant to pay, which the law in an action of assumpsit implies from a duty to pay; but only that it was competent for the jury to find from the previous dealings between the parties, as to a loan made by plaintiff to the defendant, that the advances here in question, were also impliedly understood when made, to have been made as a loan. In other words that they might in this way infer an actual agreement. We are satisfied the jury must so have understood the charge; and in this sense we see no error in it. The only error in the charge was the same contained in the request and induced by it, that of connecting all the claims of the plaintiff together, without distinguishing between them. But of this defendant cannot complain.

The fifth and sixth requests are based upon the assumption that the jury might find the parties were partners as to the repairs. There being no evidence to warrant such a finding, these requests were erroneous; though the Court charged the sixth without, and the fifth with, a qnalification, and thereby erred in favor of the defendant and not to his prejudice.

The seventh request rests upon a like fallacy and need not be specially noticed.

The evidence tended to show that the repairs were made in Canada, and that two hundred dollars of the amount was required to be, and was, paid in Canada money, which was at a high premium above American currency, and which cost the plaintiff, and was worth in American currency, two hundred and seventy six dollars, half of which, plaintiff claimed to recover. As to this, the Court was right in refusing to charge, that “the plaintiff could, in'no event recover, more than one hundred dollars with interest.” If entitled to recover at all, he was entitled to recover what the Canada money cost him, provided it did not exceed the market rate, in our currency.

We see no error in the record of which the plaintiff in error has any right to complain. The judgment must be affirmed with costs to the defendant in error.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley Ch. J. Campbell J.

license: Public Domain

text:
    David Demaray Jr. v. William N. Little.

      Foreclosure sale: Surprise: Opening biddings : Re-sale: Confii'mation. Where a defendant liad obtained from the complainant an agreement to postpone the sale under a forclosure decree, on which agreement he had relied, but the complainant neglected to give instructions in season to prevent the sale, and the property was sold at considerably less than its value, an order for a re-sale, under proper conditions to protect the purchaser, is a proper method of relief.
    Where a re-sale under a forclosure decree was ordered on condition that the bid should be advanced from $11,750 to $16,000 ; that the purchaser at the former sale should be allowed interest on his bid at the rate of ten per cent, per annum, and a counsel fee of $75 ; and on the re-sale a bid of $16,000 was offered, but the sum actually paid was only sufficient to pay the amount to ' which the former purchaser was entitled, the payment of the remainder of the "bid being delayed, by consent of the defendant in the decree, until the confirmation of the sale:

      Held, That these circumstances were not sufficient to impeach the good faith of the bidder at the re-sale, and the order of the Court below, confirming the sale, was affirmed.

      Heard October 13.

      Decided October 19.

    Appeal in Chancery from' Saginaw Circuit.
    Upon a foreclosure sale - in this case the mortgaged premises were bid off by Henry C. Potter for §11,750. The Court refused to confirm the sale and made an order that the premises be again offered for sale, for the minimum sum of §16,000; and if no bidders should offer that sum, that the sale to Potter should stand confirmed. Potter appealed from the order. This Court, at the October term, 1868, dismissed the appeal, as having been prematurely taken. (77 Mich., 386.) The premises were re-sold under the order of the Court, and Augustine S. Gaylord became the purchaser for the sum of §16,000. Potter opposed the confirmation of this sale; but the Court confirmed it: from which order of confirmation, he appeals to this Court.

      G. V. N. Lofhrop, for Potter, appellant.

      Gaylord & Hanchett, and A. Pond, for appellees.
   Cooley Ch. J.

This case comes before us on the appeal of • Henry C. Potter from a final order of the Circuit Court for the County of Saginaw, confirming a sale made of the premises described in the decree to Augustine S. Gaylord. The first error which he complains of in the Court was the opening a previous sale made of the same premises to himself, which he alleges was without legal reason and therefore unwarranted.

It appears from the record that in March 1868, the defendant, Little, was the owner of two eighty-acre lots near East Saginaw, upon one of which complainant held three mortgages amounting to upward of seven thousand dollars, and upon the other two, mortgages upon which over nine thousand dollars was owing. The last mentioned two mortgages were in process of foreclosure, decrees had been made for a sale of the premises to satisfy them, and Messrs. Webber & Smith, complainants solicitors had received instructions, of which they informed defendant, which would forbid their indulging him with delay in making payment. On the 25th of March, 1868, a sale under the decrees was advertised to take place at the Court House in Saginaw City, on the ninth day of the following May, at two o’clock P. M.

Under these circumstances defendant deemed it necessary to sell at least one of his lots of land, and he succeeded in selling the first mentioned parcel for sufficient to satisfy the incumbrances, and paid over the money for that purpose. He did not, however, obtain moneys to satisfy the decrees, and on the sixth day of May, three days before the sale was to take place, he went to the residence of complainant, which was in the State of New Jersey, near the City of New York, for the purpose of obtaining a postponement of the sale. He appears to have found complainant willing to consent to the postponement, provided his rights were not prejudiced thereby, and to ascertain whether they would be or not, complainant went to the City of New York on the morning of the ninth day of May, to consult his lawyer, but failing to find him, and after waiting as long as was deemed safe, he finally, at one o’clock forty-five minutes New York time, forwarded a telegram to his solicitors instructing them to postpone the sale to the nineteenth instant, if not illegal. This telegram was not received until a sale had actually been made, and Potter had become the purchaser at the sum of $11,750.

Upon a showing of these facts, and upon affidavits that the premises were worth considerably more than the amount of Potter’s bid, and that if they' should be re-sold, parties stood ready to pay $16,000 for them, the Court of Chancery made an order that the premises be again offered for sale on the 18th day of the following July, after due notice, at the minimum price of $16,000, and if no bids should be offered at that sum, then the previous sale to Potter should stand confirmed. If a re-sale was effected, the amount paid by Potter was to be refunded to him, with interest thereon at the rate of ten per cent per annum, and a counsel fee of seventy-five dollars was also allowed him.

Potter, as we have said, insists that this order was unauthorized. His position is, that mere inadequacy of price, is no sufficient reason, as has been declared by many authorities, for setting aside a sale in Chancery, which was in every respect, open and fair, and where neither accident or mistake has intervened to prevent -the largest sum being obtained that was reasonably practicable. Little’s delay to take steps to procure a postponement of the sale until it was about to take place, is commented upon, and it is insisted that what took place between himself and the complainant does not entitle him to any relief, inasmuch as he had waited until he could feel no reasonable confidence in being able to complete the arrangement, before he entered upon making it at all, and then delayed any attempt, to communicate with the persons in charge of the sale until so late an hour that in the ordinary course of business a telegram would not be likely to reach them-before the sale would be made. Moreover, he had made no arrangement at Saginaw to provide for .the contingency of failure; and if his property was sacrificed, it was owing to his own foolish and inexcusable supineness, and a Court of equity could not consistently interfere to relieve him by depriving a purchaser of a bargain he had obtained in good’ faith at an open and public sale.

If the question before us was, whether Little had exhibited promptness and diligence in all his movements, we should reply unhesitatingly in the negative.. Where so much was involved, a cautious man would have been likely to apply for a postponement, if he needed one, sufficiently early to be able to make some allowance for unexpected occurrences. But we cannot say that the delay in this case was so gross as to deprive the party of all claim to relief. He was taking steps to pay off his indebtedness to complainant, and had actually succeeded in paying nearly one-half of it. Under these circumstances he had reason to rely upon being indulged somewhat. The facts show that his expectations in that regard were not without foundation. He visited the complainant early enough for all practical purposes, if he had not been met by a doubt in complainant’s mind concerning the safety of a postponement, which he could not reasonably foresee or anticipate. Feeling certain, however, that this doubt would be removed as soon as complainant could consult his lawyer, it is not surprising that he waited for that consultation. The accidental circumstauee of the lawyer being away from his place of business prevented the consultation, and waiting too long for it, precluded communication with Saginaw in time to prevent the sale.

From the statement of facts it is plain that the sale which took place was a surprise to both the complainant and -the defendant. They were together and fully intended that the sale should be postponed provided complainant’s doubt was solved to his satisfaction. They did not intend to delay a telegram until it was so late that in. the ordinary course of business it would fail to reach Saginaw in season. They finally sent one an hour before the sale was to take place, but contrary to their expectations it was received an hour too late. They both, it seems, misapprehended the time necessary to ensure the transmission of the dispatch.

To state this case in a few words; the defendant had obtained from the complainant an agreement to a postponement upon which he relied, but the complainant neglected to send forward the instructions until' so late an hour that, contrary to his expectations, they failed to be received in. season. The sale was therefore made contrary to his wishes, and contrary to instructions then in the course of transmission. It was also made at considerably less than the value of the property. Under these circumstances, we think a case of surprise was made in the Court below, which warranted its interposition, and we are' not dissatisfied with the order granting relief.

But it is further insisted that the subsequent sale was not in compliance with the order of the Court, and was therefore erroneously confirmed. The specific objection is that a honaflde bid of $16,000 was not obtained. It appears that the bid was for that sum, but there was produced at the time of the sale only the amount of money payable to Potter, that this was tendered and refused, and that the Commissioner holds the certified check of a private banker at East Saginaw for the amount, while the balance of the $16,000, being $4,000 or thereabouts, was receipted by Little to the Commissioner, with an understanding that the money need not actually be paid over by the purchaser until the appeal of Potter was determined.

We have looked into the evidence concerning this sale with a view to satisfy ourselves whether the object of the order for a re-sale had been accomplished by it or not. Unless a bid of $16,000 was made in good faith, we think Potter is entitled to his purchase. Little is not to be permitted to step in and substitute some other person as purchaser in Potter’s stead, on a fictitious bid which realizes less money than the order specified. But we discover nothing in the testimony which impeaches the good faith of Mr. Gaylord’s bid, or that convinces us that any secret understanding exists which is to release him from the payment of any portion of it. And we do not think the fact that the purchaser did not produce at the time of the sale the full purchase price, when the person entitled to the balance did not desire him to do so, is such a failure to comply with the order of re-Sale as should have compelled the Court of Chancery to refuse a confirmation.

The order appealed from should be affirmed with costs.

Christianoy and Graves JJ., concurred.

Campbell J.

I do not think the order opening a sale in such a case can be reviewed in this Court. But if it is open to -review, I think the circumstances rendered the action of the Circuit Court proper,* and I concur in the reasonings and conclusions of the Chief Justice on all points.


author: Grates J.

text:
    Egbert C. Gooderich v. George Allen.

      Witnesses: Competency of parties : IB feet of Act No. 125, of 1861. The act'of 1861, 11 To amend §§¿,339,4,340, 4,341 and 4,342 of the Compiled Laws, in relation to the competency of witnesses and the examination of partiesen certain cases,” is repugnant to § 113 of the Justices Act of 1855 ; ( Comp. L. § 3,765) and, therefore, the act of 1861, prescribes the only rule as to the competency and examination of parties.

      Heard October 13.

      Decided October 19.

    Error to Oakland Circuit.
    Allen, the defendant in error, brought an action of assumpsit against Gooderich before a Justice of the Peace for Oakland County, and recovered a judgment. The case was carried by certiorari to the Circuit Court for the County of Oakland, where the judgment was affirmed. Gooderich., the defendant below, now brings the cause before this Court by writ of error.

      W B. Jackson, for plaintiff in error.
    6r. V. JVC Lothrop, for defendant in error,
   Grates J.

This suit was commenced in a Justice’s court, where the defendant in error, who was the plaintiff in that court, recovered judgment, which was afterwards affirmed on certiorari in the Circuit Court. The action .was in assumpsit, and upon the trial, Gooderich was called to the stand by his opponent and being sworn, testified. During his examination he was asked a question, which he declined 'to answer, because, as he alleged, the answer would tend to convict him of a criminal offense; and the Court held that he was privileged from answering. The Justice rendered judgment for Allen to the extent of his demand, on the ground “ that the defendant having claimed his privilege, and being present, had refused to swear.”

This was thought to be authorized by §3,765 Comp. L., being §113 of the act of 1855, to regulate the proceedings in courts held by Justices of the Peace. The section is as follows: “Either party may in all cases have the oilier sworn as a witness; and if the plaintiff refuse to appear on being personally subpoenaed,' or being present, refuse to swear, the case shall be dismissed ; if the defendant refuse to appear on being personally subpoenaed, or being present refuse to swear, the plaintiff’s demand shall be taken as confessed, no set off allowed and judgment entered accordingly; such testimony shall not be used as evidence in any other case, civil or criminal, against such party testifying, except that if such cause shall be appealed, the testimony given by such party in the Justice’s court shall be admissible, in case such party has been personally subpoenaed, and shall not appear to testify in the Circuit Court.”

It is claimed by the plaintiff in error, that the act relating to the competency of witnesses and examination of parties, approved March 11, 1861 (Laws 1861 p. 168), worked a repeal of this section of the act of 1855.

The defendant in error contests this on two grounds. He argues, first — that the- statute of 1861 was an enlarging act, which only set aside inconsistent restrictive provisions, and did not repeal a provision like that in the act of 1855, which as he insists was not in conflict with the former, although it had less scope. And, second — that the section quoted from the law of 1855 simply provided a rule of evidence and practice, and produced no change as to the competency of parties to testify, since parties were already competent when the last named statute was passed.

It seems a sufficient answer to the last position to say, that it appears to us that the provision made in 1855 materially changed the pre-existing law as to the competency of parties. It made either party competent in any case, if called by his adversary, while before that, the parties were only permitted to testify in a specified class of cases, and then only under conditions not required by the act last mentioned. §85, Ch. 93; §102, Ch. 102, R. S. 1846.

The other view urged by defendant in error' requires more consideration.

The law of 1861 does not expressly name the provision in the statute of 1855 as one to be repealed.

It is entitled “an act to amend sections four thousand three hundred and thirty-nine, four thousand three hundred and forty, four thousand three hundred and forty-one, and four thousand three hundred and forty-two of the Compiled Laws, in relation to the competency of witnesses and examination of parties in certain cases,” and, by section five, it declares that “so much of all acts or parts of acts on the same subject, as are inconsistent with, its provisions,” shall be repealed.

The title of the act, as well as the body of it, disclosing very clearly its subject matter, the reference contained in the repealing clause cannot be uncertain. By that clause then, all acts and parts of acts, as to the competency of witnesses and examination of parties, which were inconsistent with the act of which the repealing section was part, were repealed.

It remains to inquire whether the two statutes are inconsistent, according to the meaning and intent of the Legislature.

The earlier law required either party, in any case, to appear and testify at the instance of the opposite party, and provided a penalty for disobedience; while the later one, by § 4 amending § 4,342 Compiled Laws, forbids certain persons, who may nevertheless be parties, from testifying on particular subjects, except upon a condition not contained in the law of 1855.

It is therefore evident that many cases might arise within the scope of the law of 1855, and of section four of the statute of 1861, which would plainly involve the incongruity of the two.

But there is another view, which exhibits tbe inconsistency of the two acts in a clearer light still. It will be observed that the law of 1855 did not positively compel the party to testify when called on, but gave him the alternative to testify, or be defeated in the case.

The statute of 1861, on the contrary, makes both parties in the suit competent in nearly all cases, and compels them to attend and testify under the same penalties as other witnesses.

Here the incompatibility of the two laws is very apparent ; and we do not discover any rule of construction which would harmonize them.

We think, therefore, the Legislature must have intended by the act of 1861, to prescribe the only rule that should govern as to the competency and examination of parties, and consequently a rule, which should supercede that in the provision quoted from the law of 1855.

As a consequence of this view, the judgment of the Court below must be reversed with costs.

The other Justices concurred.


author: Cooley -Oh. J. Campbell J. Christianct J. Graves J.

text:
    Elbert Crofoot v. The People.

      Bills of exceptions in criminal cases: When to be settled. The statute, (Comp. L. §6,685), which requires bills of exceptions in criminal cases to be “reduced to writing in a summary mode, and presented to the Judge before the end of the term,” as it respects the time for settling the exceptions, is directory; it is sufficient if the exceptions be reduced to proper form, within such reasonable and necessary time as the Judge may allow.

      Heard and decided October 19.

    Motion by A. II. Wilkinson and Gf. V. W. Lothrop to dismiss the bill of exceptions because not settled until after the expiration of the term at which the trial took place.

      G. I. Walker and T: Romeyn, contra.
   Cooley -Oh. J.

We are all -agreed that this motion must be denied. For myself, I have grave doubts, if the statute respecting exceptions in criminal cases was designed to establish any different practice in regard to the settlement of exceptions, from that which is prescribed for civil cases. The statute speaks of the exceptions being reduced to writing-in a summary mode, and presented to the Judge before the end of the term. (Comp. L. %6,088). These terms are proper and apt terms to apply to the taking of exceptions preparatory to incorporating them in a formal hill; hut they are not proper and apt terms to apply to the bill itself. I do not think we should construe this statute as requiring the actual preparation of the formal bill of exceptions driring the term, when the phraseology of the statute does not imperatively demand it, and great injustice, amounting to a denial of right in some cases, would be the result.

But, if I were satisfied that the proper construction was as claimed by the prosecution, I should still think this motion ought to be denied. The purpose of the statute is to secure to the accused party the benefit of his exceptions. That is the main purpose; and the provisions designed to accomplish it, and to secure the settlement of the exceptions in proper time, while the facts are fresh in the mind of the Judge, are directory only, and may be extended by him in his discretion. The object of these provisions is accomplished, if the formal bill is presented to the Judge within such reasonable time as he may have allowed for the purpose. On the other hand, the main object of the statute is defeated if we hold the provision respecting time imperative, and thereby elevate the circumstance of time, which, in this case, the Judge appears to have regarded unimportant, to be the controlling circumstance in the case. We are not warranted, I think, in this construction; but must endeavor to give effect to the real intent of the Legislature as near as we can arrive at it. We shall unquestionably do that, I think, by saving the exceptions, which the party has reduced to proper form in such reasonable and necessary time as the Judge has given.'

Campbell J.

I am also of the opinion that the statute is directory. A bill <5f exceptions does not operate in arrest of judgment. The Court can still go on and sentence, if it is thought proper. And, if taken up on writ of error, there is no supersedeas without a special allowance. The argument against delay is, therefore, without force.

This statute contemplates that a prisoner may be as much injured by wrong rulings on the trial, as by defects in the record; and, in fact, he is much more liable to be wronged on the trial. It was intended to give every one a fair opportunity of being heard in an appellate court. But it could not have been designed that a prisoner, tried early in the term, should have greater advantages than another who, without having any power to control the time of trial, is tried at the end of the term. Against such absurd consequences, we are bound to seek some reasonable construction ; and when a party has done what he could, we cannot suppose it was intended that he should be compelled to do more. The law must be reasonably construed so as to secure its fair operation.

If the statute required the bill in express terms to be signed during the term, and from its length, or from other causes, the Judge could not examine it in time, and should refuse to sign it; the bill would not thereby become void, but he could be compelled to sign it afterwards. The law does not require impossibilities, and where a construction makes it necessary to attempt this in order to save a right, it is manifestly unreasonable. It is necessary to treat this statute as directory, to avoid absurd conclusions, and where a defendant has used diligence, nothing more can be demanded of him.

Christianct J.

Whether, after exceptions have been duly taken on the trial of a criminal cause, the formal incorporation of them into a bill of exceptions may come within the statute in in reference to exceptions in civil cases, — as I am indlined to think they may — or, if governed exclusively by the statute in reference to excentions in criminal cases, then, whether the latter statute is to be regarded in all cases as merely directory, so far as relates to the time when the bill is required to be settled; I do not deem it necessary here to decide.

The trial' in the present case was concluded on the evening of the last day of the term, as fixed by law, and it is admitted to have been impossible to prepare the bill of exceptions, and have it settled, and signed within the term. It- must, therefore, be done afterwards, or the defendant must lose all benefit of the exceptions, without any fault of his, or of his counsel.

The statute, giving the defendant the right of exception, manifestly intended to give him the benefit of those exceptions, if well taken, unless he should deprive himself of that benefit by some default of his own. Upon the ground of necessity, therefore, the statute must be held directory as 'applied to such a case; and I have no doubt of the right of the Judge to extend the time for settling the bill, as was done in this case.

Courts have sometimes undertaken to avoid all apparent discrepancies in such cases by allowing entries to be made monc pro tunc; and, in some of the States, the bills of exceptions whenever settled, are by the courts required to show upon their face, that they were settled and signed at the trial, or at the term. But it is manifest, that this mode of making an act appear to have been done, before it was done, m order to secure a mere apparent compliance as to time with the statute, is but another mode of declaring it thus far directory only.

Graves J.

The statute declares that the defendant, considering himself aggrieved by any opinion, direction or judgment of the Court, may allege exceptions, which being reduced to writmg in a summary mode and presented to the Judge before the end of the term, and found conformable to the truth of the case, shall be allowed and signed by the Judge.

The right to make exceptions, and obtain thereupon a review of the decisions of the trial court, is one of the first importance, and, by this provision, was manifestly intended to be secured to all defendants in criminal trials, in all Courts of Record.

The language used is so explicit as to preclude all controversy on this point. The law has applied this provision to the Recorder’s Court, and has at the same time absolutely limited the duration of the terms of that Court.

Now, it must frequently happen, that the trial of a cause will terminate so near the close of the same term, and the commencement of the next, as to make it quite impracticable to settle a bill of exceptions during the trial term.

Beside, many cases will occur, as they have occurred, in which considerable delay in the formal preparation of the bill will be inevitable, in consequence of circumstances implying no fault in defendant. The judge or counsel may be sick, or papers may be mislaid or destroyed.

We must therefore either reject the construction contended for by the people or decide, in effect, that the right of review upon exceptions given by one provision of law to all defendants, in all criminal cases, in Courts of Record is, by the operation of another provision, confined to a portion only of such defendants.

Certainly, such a construction ought not to be given to the statute, unless imperatively required by the plain intent of the Legislature.

I think the provision in question must be regarded as ■ directory merely.

Motion denied.