
    Morris against Buckley and others.
    
      Query, Court has ^ „sue to ih.. Court piea"™"'011
    Exceptions to evidence must be taken as soon 'as the Court has decided to admit or reject the evicb-nce. It is sufficient, however, if a note be made of the exception, and submitted to the Court at tin1 time it is taken : It may be reduced to form afterwards. When an exception is taken to the charge of the Courts the substance of the exception should be reduced to writing, and tendered to the Court, before a verdict is delivered by the jury in open Court. It may afterwards be put into form.
    In Error.
    ON motion of Buchanan, for the plaintiff in error, a rule was granted to shew cause why a mandamus should not issue to the Court of Common Pleas of .Berks county, commanding them to seal a bill of exceptions which had been exhibited to them, and which was now exhibited to this Court, or to shew cause for not doing so; and also to return, as part of the record, a paper containing twelve points of law, on which the counsel for the plaintiff had requested the said Court to charge the jury, together with'the answers of the Court annexed.
    From the affidavits of Frederick Smith and William Darling, esquires, it appeared that in November, 1818, a trial of this cause took place in the Court below. After the jury had retired, the counsel for the plaintiff informed the' Court, that he excepted to their charge, and was requested by the Court to draw up his bill of exceptions. A verdict was after-wards given for the defendants, on which judgment nisi was entered on the 14th November, 1818. On the 28th of the same month, the plaintiff’s counsel obtained a rule to shew cause why the verdict should not be set aside and a new trial granted, which was argued on the 7th August, 1819, and overruled. Some time in the following week, a bill of exceptions was tendered by the plaintiff’s counsel, which the Court declined sealing, without the consent of the counsel for the defendants, who refused to.consent. A writ of error was sued out to May, 1821, and on a diminution of the record being suggested, in not sending up the bill of exceptions, a certiorari issued, to which the Court returned, that there was “ no such bill of exceptions.” On the hearing in this Court, a paper was produced, which Mr. Smith swore was in his' hand writing, containing twelve points of law, propounded by the counsel for the plaintiff to the Court for their opinion. Under each point was written a remark by the President of the Court, in conformity-with which Mr. Smith swore he charged the jury.
    Buchanan, in support of the rule — First affirmed-the power of this Court to issue a mandamus in such a case; and, secondly, contended, that-this was a proper case for the exercise of that power.
    1. It is of great importance that this Court should assert their right to issue a mandamus to compel the Judges of the Courts of Common Pleas, to affix their seals to bills of exception. The Siatute of Westminster 2d, by which a bill of exceptions is given, is extended to Pennsylvania, but without the power somewhere to enforce the duty enjoined by it, its provisions will, in many cases, prove nugatory. This power resides no where but in the Supreme Court. By the 13th sect, of the Act of 22d May, 1722, very ample, powers are conferred on this Court, which is invested with a general Superintendence, over all the other tribunals in the province, is authorised to minister justice to all persons, and to exercise the jurisdictions and powers granted to it, as fully and. amply as the J ustices of the Court of King’s Bench, Common Pleas, and Exchequer at Westminster can do. In England, if the Judges refuse to sign a bill of exceptions, the course is plain. The party aggrieved may have a writ upon the Statute, which after reciting the exception taken and overruled, proceeds vobis prcecipimus quod si ita est, tunc sigilla vestra apponatis. If it be returned, quod non ita est, an action will lie for a false return, and if it be so found, damages will be given, and upon such a recovery a peremptory 'mandamus is awarded. Bull. N. P. 315, 216, 2 Inst. 426. The form of such a writ is to be found in Regis., Brev. 182. In the State of New York, such relief is constantly granted. People v. Judges of West Chester, 2 Johns. Ca. 118. People v. Judges of Washington, 1 Caines' Rep. 511; and the Supreme Court of that State have decided, that they may issue, a mandamus for such a purpose, notwithstanding they have a Court of Chancery. Sikes v. Ransom, 6 Johns. 279. If this Court do not possess the power contended for, there must be a failure of justice. A writ of certiorari affords no redress, because it only orders the transmission of an existing record, while the object is to compel the Court to give existence to that which ought to' be a part of the record, which can only be accomplished by a mandamus. Nor is an action against the Judges, for damages, a proper remedy. Until they have made a false return, no action will lie against them ; and it is greatly to their advantage that the law is so ; for if the Judges are sued when no mandamus has issued, the damages must be for the whole amount of the party’s demand ; but if a suit be brought for a false return to the writ, there damages are merely for the delay, because the remedy for all the rest will be had by a peremptory mandamus. Every consideration of expediency, therefore, whether connected with the party complaining or complained against, recommends the exercise of a power, which this Court undoubtedly possesses.
    2. The power of this Court to issue a mandamus, being established, the propriety of doing so on the present occasion, remains to be considered. The Statute mentions no time, at which a bill of exceptions should be sealed.' In England, the practice is to' note the point at the time the exception is taken, and to reduce the bill to form after the trial. The practice in Berks county, as appears from the affidavit of. Mr. Smith, whose experience extends as far back as 1795, is the same, and it is very usual there, not to make up the bill until several terms after the cause has been tried. What was done in this case, was conformable to the practice. The exception was taken, immediately on the jury’s leaving the box,' although no formal bill was presented to the Court, until after the motion for a new trial had been discharged; and the delay in this case was the less liable to objection, because twelve points were submitted to the Court, under each of which, the presiding Judge wrote his opinion, and retained the paper, which formed substantially a bill of exceptions.
    
      Baird and Hopkins, contra,
    denied the authority of this Court to award the writ prayed for. It is not authorised by the Act of 1722, which is expressed in general terms, and does not say a word of a power to' issue writs of mandamus to the Courts of Common Pleas, which, being superior Courts, are not amenable to such process. Several applications have been made for this writ, and although the Court have not positively denied the existence of the right, they have uniformly declined the exercise of it. Commonwealth v. Judges of Common Pleas of Philadelphia county, 3 Binn. 273. Brackenridge's Case, 1 Serg. & Rawle, 192. The exigencies of this case do not require a mandamus, which, it is well settled, can only be granted, when no other remedy can be obtained. Commonwealth v. Rosseter, 2 Binn. 360. The obvious remedy was a writ of certiorari. This, the plaintiff has already resorted to, and the Judges have returned, that no such record remains in the Common Pleas. If their return is false, redress may be had, by an action against them for damages. If that remedy be not sufficient, the party aggrieved has another, by an action for damages, against the Judges for disobedience to the Statute. Where a Statute is disobeyed, an action lies, and in such a case, a mandatory writ to the King’s Bench, has been denied by the Chancellor. Show. Par. Cas. 122. The reason given in Brackenridge's Case,-for not granting the relief applied for, supposing'the Court to possess the power to grant it, applies with equal force to the case under consideration. In both instances, the writ was prayed, in order to compel the performance of an act of a judicial nature. Another serious objection occurs. This Court will .never undertake to administer justice by halves, and assume a jurisdiction they-cannot carry through. Now if an action for a false return be brought, it must be in the Court which issued the mandamus. 4 Bac. Ab. 522. 2 Salk. 428. 1 Ray, 128; and this cannot be, because this Court possesses original jurisdiction only in the county of Philadelphia.
    
    But to entitle a party to a mandamus, there must be a specific legal right, as well as the want of a specific legal remedy, and here was no such right. It is the duty of the counsel to propose his exception in writing, and the Judges are bound to do nothing but affix their seals to the exception. Where evidence is excepted to, the bill ought to be tendered when the exception is taken; where the exception is to the charge, it may be taken at any time before the verdict is delivered in open. Court. Clarke v. The Insurance Company of North America, 1 Binn. 38. Salk. 288. 6 Johns. 279. 9 Johns. 345. 8 Mod. 220. 12 Johns. Cas. 118. 1 Bac. Ab. 528. No bill was presented in the present case, until the third Term after the trial, when the Jddg-e had no right to seal it, without the consent of the opposite party, which was refused.
    - In reply, it was said, that in the case of The Commonwealth v. The Judges of the Common Pleas of Philadelphia county, it was only decided, that a mandamus would not lie to that Court, to command them how to give judgment; that Brackenridge’s Case went upon the principle, that the admission of an attorney was a judicial'act; but the affixing a seal to a bill of exceptions, was purely ministerial; that the objection in the case cited from Show. Par. Cas. 122, which was a petition to the House of Lords, to command the Court of King’s Bench to seal a bill of exceptions, was, that a writ should have been prayed for on the Statute of Westminster 2d. to which the Judges might have made a return ; and that the argument founded upon the idea, that this Court could not give complete relief, for want of original jurisdiction, was unfounded, because an action for a false return, might well be brought in another Court, and whether this Court would afterwards award a peremptory mandamus, was another ques-. lion.
   The opinion of the Court was delivered by

Tilghman C J;-

The counsel for the plaintiff in error have made an application to the Court, founded on the affidavits of Frederick Smith and William Darling, esquires* for a writ of mandamus to the Judges of the Court of Common Pleas of Berks county, commanding them to affix their seals to a certain bill of exceptions, taken at the trial of‘this cause before them, or'shew cause, &c.

On the argument on this motion, two points have been made — 1st. As to the powerof this Court to issue a mandamus to the- Court of Common Pleas. 2d. As to the' propriety of issuing the writ in this case, supposing the power to exist.

The judgment which the Court has formed on the second point, renders it unnecessary to give an opinion as the first. Bills of exceptions are founded on the Stat.'of Westminster 2d, (13 Ed. 1.) ch. 31. That Statute does not expressly mention at- what time the exception is to be tendered, but the reason of the thing, the practice of most Courts, and the precedents and authorities on the subject, prove, that it must be at the time of the trial. Exceptions' to evidence must be taken, as soon as the Court has decided to admit, or reject the evidence. If is sufficient, however, if a note be made of the exception, and submitted to the Court, at the time it is taken. It may afterwards be reduced to form. When an exception is taken to the charge of the Court, it must be tendered before a verdict is delivered by the jury in open Court. In that case also, it will be sufficient, if the substance of the exception be reduced to writing and tendered to the Court at the time, which may afterwards be reduced to form. Any other construction of the Statute would be attended with excessive inconvenience, and place the Judges in a condition so. perilous, that no prudence or diligence could protect them. It is almost impossible, that a Judge should retain his charge in memory for any considerable time. What is he to do then, if he is called on to seal a bill of exceptions, some months, dr even weeks, after the trial ? He must either render himself subject to an action of damages by a. refusal, or run the hazard of violating his conscience and doing injustice to one of the parties, by certifying a charge of which he has no certain recollection. The law on this subject was well argued and considered,- in the case of. Jones & Clarke v. The Insurance Company of North America, 1 Binn. 38. There, the Court allowed the bill of exceptions which was taken to their charge, and tendered- after the jury retired, and agreed on a privy verdict, but before they had delivered theif verdict in open Court. Both the Court and counsel seem to have taken for granted, that the delivery of the verdict in Court, was the last moment which could be allowed for tendering the bill," and we are of opinion that such is the law. Now to apply it to the case before us: Very soon after the jury had received- the charge of the Court, and retired from their box, Mr. Evans, the counsel for the plaintiff, mentioned to the Court, that he excepted to the charge. The President told him to prepare his bill, -which he said he would do., The vérdict was given for the defendants, and judgment nisi, &c. entered on the 14th November, 1818; and on the 28th day of the same month and year, a rule wás granted, on motion of the'plaintiff’s counsel, to shew cause why the verdict should not be set aside, and a new trial had. On the 7th day of August, 1819, this rule was discharged, and some time in the week next following, Mr.. Evans tendered to the Court a bill of exceptions. But the Court would not put their seals to it, without the consent of the counsel for the defendants, which consent was not given. It appears, then, that nine months intervened between the trial, and .the tender of the bill; a period altogether' unreasonable, even if there were no fixed time for making it. But Mr. Smith, in his affidavit, has referred to a paper annexed, which he says is his own hand writing, containing twelve points proposed by the plaintifl’s counsel to- the Court for their opinion, underneath each of which points is a remark, or observation, in the writing of the President of the Court, and Mr. Smith swears, that the President charged the jury-according to these observations. - It may be so ; but we have examined that paper, and to call it the notes of a bill of -ex-ceptions would be ascribing to it a quality which does not belong to it. A bill of exceptions should be prepared by the counsel who takes the exception, and in this case the counsel was desired by the Court to prepare it, as the affidavits prove. So that the paper now produced, cannot have been notes of a bill .of exceptions prepared by the counsel and tendered to the Court. Indeed neither of the affidavits says that it was — they mention no .tender of any bill, or notes of a bill; before August, 1819. ' The njo§t that can be said of this paper is this; that supposing the short remarks in the writing of the President to be a memorandum of the answers intended to be given by the Court to each question, they might enable the Court- -t,o make out a bill of exceptions noxv, if they thought proper to do so. But that Court is critically circumstanced. The counsel for the defendants may think' their clients injured by a bill of exceptions allowed at so late an hour • and in. deciding how to act, the Court is not to look to one side only. That,, however, is a matter of discretion, in which the Court must be governed by its own conscience and judgment. What we have to decide is, whether'under the facts disclosed by the affidavits, we ought to grant a mandamus, supposing we had the power ; and we are of opinion, that we ought not. The motion must therefore be.refused-.

Motion denied,  