LEES V. UNITED STATES

853

during its admission, the instructions asked, the charge of the court, and the exceptions thereto, and closes with these words:

"And thereupon the counsel for the said defendants did then and there except to the aforesaid charge and opinion of the said court, and inasmuch as the said charge and opinion, so excepted to, do not appear upon the record:

"The said counsel for the said defendants did then and there tender this bill of exceptions to the opinion of the said court, and requested the seal of the judge aforesaid should be put to the same, according to the form of the statute in such case made and provided. And thereupon the aforesaid judge, at the request of the said counsel for the defendants, did put his seal to this bill of exceptions, pursuant to the aforesaid statute in such case made and provided this fourteenth day of May, 1889.

"(Signed) William Butler. (Seal)"

The objection is that it nowhere appears, by any direct certificate of the judge, by whom John S. Lees was called to testify, or on whose behalf, or that any objection was made and overruled, or any exception taken. Counsel says in his brief: "It is plainly evident that the bill of exceptions was designed, as it states, to introduce into this record only the charge and opinion of the court, and did not relate to any of the innumerable other matters, as to which it appears that the right to except was reserved at the time of their occurrence, and memoranda entries made at the time for future bills of exception, should they hereafter be deemed advisable. But the purpose to introduce these matters by such bills of exceptions seems to have been abandoned; at any rate, no such bills appear in this record, and these matters can not, therefore, be considered by the court."

There is some plausibility in this contention, inasmuch as the two sentences prior to the last, quoted above from the bill of exceptions, suggest, at least, that the purpose of counsel for defendants was simply to preserve exceptions to the charge, and that the authentication of the judge was requested for that alone. But whatever of force there is in this implication is overborne by the statement in the last sentence of what the judge did. By his signature and seal he authenticated the bill of exceptions, as prepared and presented to him. And all the facts and matters stated in that bill are by such authentication brought into the record for all purposes for which they may legitimately be used.

The bill is a single bill of exceptions, commencing with the opening of the trial and ending with the charge of the court, and as such it is authenticated. And that, by this bill errors other than those in the charge were sought to be preserved, is made clear by the fact that, in the assignments of error filed with the bill, there are separate allegations of error in respect to the rulings of the court in the admission of testimony. It is well settled that, instead of preparing separate bills for each separate matter, all the alleged errors of a trial may be incorporated into one bill of exceptions. Pomeroy v. Bank of Indiana, 1 Wall. (U. S.) 592, 600, 601, in

which it was said: "Many exceptions may be inserted in one bill of exceptions, and, of course, it is sufficient if the bill of exceptions is sealed at the close. Accordingly, the practice, in the first and second circuits, is to put every exception taken at the trial into one bill of exceptions, which makes the records less voluminous."45 See also Chateaugay Iron Co., Petitioner, 128 U. S. 544. It does not, however, follow that, because all rulings excepted to at the trial may be incorporated into one bill of exceptions, all the proceedings at the trial ought to be stated at length. On the contrary, we frequently find all the testimony set out in such a bill when it can serve no useful purpose, and simply encumbers the record. Only so much of the testimony, or the proceedings, as is necessary to present clearly the matters at law excepted to should be preserved in a bill of exceptions. If counsel would pay more attention to this, they would often save this court much unnecessary labor, and their clients much needless expense. Of course, in this case, as in all similar cases, there remains an inquiry as to the scope and sufficiency of any particular objection or exception disclosed by the bill. All that is meant by this ruling is that the objection or exception thus noted is before us for consideration for whatever it is worth. And, turning to the exception now under consideration, it is specific and direct to the one error of compelling the defendant to be a witness against himself. It is not like that in Railroad Company v. Varnell, 98 U. S. 479, where the exception ran a whole page of the court's charge, nor was it as in Hanna v. Maas, 122 U. S. 24, an objection without any exception to the court's ruling, but a distinct objection to a specific matter presented, considered, and overruled, and the ruling excepted to. It was, therefore, sufficient to bring to the consideration of this court the error alleged.46

Judgment reversed.

Accord: Stewart v. Huntington Bank, 11 Serg. & R. (Pa.) 267, 14 Am. Dec. 628 (1824); Brewer v. Isisk, 12 How. Pr. (N. Y.) 481 (1856); Anderson v. Ames, 6 Iowa 486 (1858); Associates of Jersey Co. v. Davison, 29 N. J. L. 415 (1860); Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811 (1895); Rosenthal v. Ehrlicher, 154 Pa. 306, 26 Atl. 435 (1893); Connell v. O'Neill, 154 Pa. St. 583, 26 Atl. 607 (1893); Foley v. Phila. Rapid Transit Co., 240 Pa. 169, 87 Atl. 289 (1913); First Nat. Bank v. Fox, 40 App. (D. C.) 430 (1913). Contra: Tall v. Steam Packet Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120 (1899); Baltimore & Ohio R. Co v. Rueter, 114 Md. 687, 80 Atl. 220 (1911); Citizens Mut. Fire Ins. Co. of Cecil County v. Conowingo Bridge Co., 116 Md. 422, 82 Atl. 372 (1911); and see Hainlin v. Budge, 56 Fla. 342, 47 So. 825 (1908).

Under the statute of Westminster II, a bill of exceptions is settled by stating in a condensed and narrative form such, and only such, material facts as are necessary for the determination of the point of law raised. Ex parte Jones, 8 Cow. (N. Y.) 123 (1828); Thomas v. Wright, 9 Serg. & R. (Pa.) 87 (1822); Carey v. Giles, 10 Ga. 1 (1851); Karasich v. Hasbrouch, 28 Wis. 569 (1871); Hickman v. Jones, 76 U. S. 197, 19 L. ed. 551 (1869); Harvey v. Van DeMark, 71 Ill. 117 (1873); Hanna v. Maas, 122 U. S. 24, 30 L ed. 1117 (1886); Alexander v. Williamson, 86 Ga. 13, 12 S. E. 182 (1890); Grisell v. Noel Bros., 9 Ind. App. 251, 36 N. E. 452 (1893); Caldwell v. Parks, 50 Cal. 502 (1875); Baltimore R. Co. v. Fitzgerald, 2 App. D. C. 501 (1894); Ryder v. Jenkins, 163 Mass. 536, 40 N. E. 848 (1895); Whaley v. Vidal, 26 S. Dak. 300, 128 N. W. 331 (1910); In re Horan, 207 Mass. 256, 93 N. E. 581 (1911); Hahn v. Mackay, 63 Ore. 100, 126 Pac. 12 (1912); Doylestown Agriculture

SIKES V. RANSOM

855

SIKES v. RANSOM

SUPREME COURT OF NEW YORK, 1810

6 Johns. (N. Y.) 279

This was an application to the court for a mandamus to the judges of the Ostego common pleas, to amend a bill of exceptions, according to the truth of the case.47

PER CURIAM. (KENT, C. J.): The application is entirely new; and it becomes a question whether this court can interfere when a court below refuses to seal a bill of exceptions. The books do not furnish much light on this subject. The practice, in England, under the Stat. of Westm. II (of which ours is a copy), seems to be, to apply to the court of chancery, for a writ grounded upon the statute. The form of the writ is to be found in the register; (182 a) 48 and Lord Redesdale, in the case of Lessee of Lawlor v. Murray, I Sch. and Lefroy 75, calls it a mandatory writ, "a sort of pre-rogative writ;" that the judges to whom it is directed, must obey the writ, by sealing the exceptions, or make a special return to the king in chancery.49 The writ, after reciting the complaint, commands the judges si ita est, tunc sigilla vestra, etc., et hoc sub periculo quod incumbit nullatenus omittatis. What that peril is, within the purview of the writ, does not distinctly appear; though the books speak of an action on the statute, at the instance of the party aggrieved. (Show. P. G., 117.) In the Rioter's Case, 1 Vern. 175, a precedent was produced, where, in a like case, such a mandatory writ had issued out of chancery, to the judge of the sheriff's court in London. But, though no instance appears, of such a writ issuing out of the K. B. when an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ. It is, in effect, a writ of mandamus, and it is so termed in the books. (Bac. Abr. tit. Mandamus, E.) A mandamus is a prerogative writ. It ought to be used where the law has established no

Co. v. Brackett, 109 Maine 301, 84 Atl. 146 (1912); Cornell-Andrews Smelting Co. v. Boston & P. R. Corp., 215 Mass. 381, 102 N. E. 625 (1913); West v. McDonald, 67 Ore. 551, 136 Pac. 650. A stenographer's transcript of the testimony is not a bill of exceptions. Keady v. United Ry., 57 Ore. 325, 108 Pac. 197 (1910); Cincinnati Tr. Co. v. Reebusch, 192 Fed. 520 (1912). But may be incorporated in the bill of exceptions by the practice in some jurisdictions. Wagoner v. Wilson, 108 Ind. 210, 8 N. E. 925 (1886); Big Creek Co. v. Wolf, 138 Ind. 496, 38 N. E. 52 (1894); Sanders v. Mississippi, 74 Miss. 531, 21 So. 299 (1896); Connell v. O'Neil, 154 Pa. St. 582, 26 Atl. 607 (1893); Yoast v. Beatty, 12 Pa. Super. Ct. 219 (1899); Foley v. Philadelphia Rapid Transit Co., 240 Pa. 169, 87 Atl. 289 (1913).

"Part of the opinion is omitted.

45 See translation of writ in note to Drexel v. Man, 6 Watts & S. (Pa.) 386, 40 Am. Dec. 573 (1843).

In Drexel v. Mann, 6 Watts & S. (Pa.) 386, 40 Am. Dec. 573 (1843), it is said by Gibson, C. J.: "Such a remedy certainly resembles an alternative mandamus, still it is not a prerogative writ, but specific, grounded on a statute." Accord: Conrow v. Schloss, 55 Pa. St. 28 (1867); and see Haines v. Commonwealth, 99 Pa. St. 410 (1882).

specific remedy; and where, in justice and good government, there ought to be one. Why can not the writ in question issue from this court? We have the general superintendence of all inferior courts; and are bound to enforce obedience to the statute, and to oblige subordinate courts and magistrates to do those legal acts which it is their duty to do. The mandamus, as was observed in the case of The King v. Baker, 3 Burr. 1265, has, within the last century, been liberally interposed, for the benefit of the subject, and the advancement of justice. There is no reason why the awarding of this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery. It would be equally in the alternative, quod si ita est, to seal the bill of exceptions; and if it be returned quod non ita est, the answer would be sufficient; and the party if aggrieved, would be put to his action for a false return. If complaint should be made against this court, or one of its judges, for refusing to seal a bill of exceptions, then the writ must, ex necessitate, come from chancery,50 if anywhere; but in no other case can it be indispensable.

But, though the court are of opinion that they have jurisdiction in this case, yet there does not appear to be sufficient ground disclosed to justify their interference.51

Motion denied.

50But compare The Rioters Case, 1 Vern. 175 (1683). A motion_was made that the Lord Keeper would grant a mandatory writ to the Chief Justice of the King's Bench to command him to sign a bill of exceptions. The Lord Keeper denied the motion: "for that the precedent they produced was to an inferior court, and he would not presume, but the Chief Justice of England would do what should be just in the case.'

"

Whatever the nature of the remedy, whether true mandamus or a statutory proceeding akin to mandamus, the appellate court has power to compel the trial court to settle a bill of exceptions. Y. B. 11 Hen. IV 52; Fitz. N. B. 21; 2 Co. Inst. 427; Bridgman v. Holt, Shower P. C. III; Lawlor v. Murray, Sch. & L. 75 (1803); People v. Judges, 1 Caine (N. Y.) 511 (1804); Broussart v. Trahan, 3 Martin (La.) 714 (1815); Springer v. Peterson, I Blackf. (Ind.) 188 (1822); Delavan v. Boardman, 5 Wend. (N. Y.) 132 (1830); Ex parte Crane, 5 Pet. (U. S.) 189, 8 L. ed. 92 (1831); People v. Jameson, 40 Ill. 93, 89 Am. Dec. 337 (1867); Etheridge v. Hall, 7 Port. (Ala.) 47 (1838); People v. Pearson, 3 Ill. (2 Scam.) 189, 33 Am. Dec. 445 (1839); Drexel v. Man, 6 Watts & S. (Pa.) 386, 40 Am. Dec. 573 (1843); People v. Baker, 35 Barb. (N. Y.) 105 (1861); Conrow v. Schloss, 55 Pa. St. 28 (1867); Marsh v. Hand, 35 Md. 123 (1871); Douglass v. Loomis, 5 W. Va. 542 (1871); Jelley v. Roberts, 50 Ind. I (1875); Benedict v. Howell, 39 N. J. L. 221 (1877); Page v. Clopton, 30 Grat. (Va.) 415 (1878); Henry v. Davis, 13 W. Va. 230 (1878); People v. Van Buren, 41 Mich. 725 49 N. W. 924 (1879); State v. Weaver, 11 Nebr. 163, 8 N. W. 385 (1881); State v. Hawes, 43 Ohio St. 16 (1885); People v. Anthony, 129 Ill. 218, 21 N. E. 780 (1889); Swartz v. Nash, 45 Kans. 341, 25 Pac. 873 (1891); Collins v. Christian, 92 Va. 731, 24 S. E. 472 (1896); State v. Sneed, 105 Tenn. 711, 58 S. W. 1070 (1900); Houghton v. Superior Court, 128 Cal. 352, 60 Pac. 972 (1900); Taylor v. Reese, 108 Ga. 379, 33 S. E. 917 (1899); Sears v. Candler, 112 Ga. 381, 37 S. E. 442 (1900); State v. Gibson, 187 Mo. 536, 86 S. W. 177 (1904); Morgan v. Kent Circuit Judge, 150 Mich. 64, 113 N. W. 583 (1907); Harper v. Judge, 155 Mich. 543, 119 N. W. 913 (1909); Springfield v. Fulk, 96 Ark. 316, 131 S. W. 694 (1910); Brode v. Goslin, 158 Cal. 699, 112 Pac. 280 (1910); Beck v. Great Northern Ry. Co., 115 Minn. 259, 132 N. W. 1 (1911); Davies v. Rose-Marshall Coal Co., 74 Wash. 565, 134 Pac. 180 (1913). But not to settle it in a particular manner when there is a dispute as to the incidents of the trial. The presid

HUBBARD V. CHAPMAN

857

HUBBARD v. CHAPMAN

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, 1898

28 App. Div. (N. Y.) 577

Motion by the plaintiff to dismiss an appeal taken by the defendant.

HATCH, J.: The appellant made and served a case which he calls a "proposed case and exceptions." It is evident that by this proposed case the appellant only seeks to review certain rulings of the court in receiving certain testimony, offered by the respondent upon the trial, and for this purpose the case as proposed states that "evidence was offered by the plaintiff tending to prove," etc. Then follows a statement of the evidence, and the objection thereto, and the ruling of the court thereon.

We think that this is a case contemplated by section 997 of the Code of Civil Procedure, which provides:

"When a party intends to appeal from a judgment rendered after a trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case, and procure the same to be settled and signed by the judge by or before whom the action was tried, as prescribed in the General Rules of Practice. . . . The case must contain so much of the evidence and other proceedings upon the trial as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case."

ing judge must say whether or not an exception was taken and his return controls; the suggested remedy being an action for a false return. Tweed v. Davis, 1 Hun. (N. Y.) 252, 47 How. Pr. (N. Y.) 162 (1874); State v. Todd, 4 Ohio 351 (1831); Benedict v. Howell, 4 Ohio 351 (1831); State v. Small, 47 Wis. 436, 2 N. W. 544 (1879); Cummings v. Armstrong, 34 W. Va. I, II S. E. 742 (1890); Sea Ins. Co. v. St. Louis Ry., 103 Ark. 503, 148 S. W. 251 (1912).

By statute in some states if the judge disallows or fails to sign exceptions duly tendered, the party aggrieved may establish his exceptions in the appellate court. Bottum v. Fogle, 105 Mass. 42 (1870); Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525 (1891); Clemens Electrical Mfg. Co. v. Walton, 173 Mass. 286, 52 N. E. 132, 53 N. E. 820 (1898); Crow v. Minor, 85 Cal. 214, 24 Pac. 640 (1890); Baird v. Gleckler, 3 S. Dak. 300, 52 N. W. 1097 (1892); Frank v. Mallett, 92 Maine 77, 42 Atl. 238 (1898); Whipple v. Preece, 18 Utah 454, 56 Pac. 296 (1899); Forrester v. Boston & C. M. Co., 23 Mont. 122, 58 Pac. 40 (1899); Kendall v. Rossi (R. I.), 85 Atl. 922 (1913). In other states, also by statute, a bill of exceptions may be signed by bystanders if the judge refuses to sign it. Wright v. Nichols, I Bibb (Ky.) 298 (1808); Arnold v. Leathers, 2 Dana (Ky.) 287 (1834); Houston v. Jones, 4 Tex. 170 (1849); Simon v. Weigel, 10 Iowa 505 (1860) St. John v. Wallace, 25 Iowa 21 (1868); Hoyt v. Williams, 41 Mo. 270 (1867); Heidenheimer v. Thomas, 63 Tex. 287 (1885); Diamond Mining Co. v. Faulkner, 17 Colo. 9, 28 Pac. 472 (1891); Fordyce v. Jackson, 56 Ark. 594, 29 S. W. 528, 597 (1892); Williams v. Pitt, 38 Fla. 162, 20 So. 936 (1896); Ayer v. Greer, 87 Ark. 543, 113 S. W. 209 (1908); Cox v. Cooley, 88 Ark. 350, 114 S. W. 929 (1908); State v. Taylor, 134 Mo. App. 430, 114 S. W. 1029 (1908); Shook v. Shook (Tex. Civ. App.), 145 S. W. 699 (1912).