
    THOMAS W. JONES vs. THE PENNSYLVANIA RAILROAD COMPANY et al. and CHARLES T. STEWART vs. SAME.
    1. A motion under Sec. 804, R. S. D. C.; and Rule 54 of this court, to be technically correct, should explicitly ask the justice who tried the cause to entertain a motion made on his minutes to set aside the verdict and grant a new trial “ upon exceptions,” &c.
    2. A motion made under Sec. 806, R. S. D. C., “ to set aside the verdict and grant a new trial on exceptions,” while not technically in proper form is not invalid because of the omission of the words “bills of,” if the circumstances surrounding the conduct of the parties in connection with the motion show that the motion contemplated was that provided for by Sec. 806.
    3. It is not requisite in a motion for a new trial under Sec. 806 to enumerate the grounds upon which the motion is founded, the object of the motion being to procure a review of all the rulings already enumerated in the exceptions.
    4. The power to make Rule 62 of this court (which provides for the extension of the term for the purpose of settling bills of exceptions) was given by Sec. 770, R. S. D. O., and that rule is, therefore, valid.
    5. While it would be more proper to specify the time to which the term is extended, by an order of the court, under the provisions of Rule 62, and also to specify the cases which are designed to be entitled to claim the benefit thereof, yet an omission to do so does not invalidate the order.
    6. The adverse party is entitled to no other notice of an order extending the term for the purpose of settling bills of exceptions than that given by its entry on the minutes of the court.
    7. While an appellate court should do nothing to encourage appeals for delay, yet where a suitor has made an honest effort to exercise his legal right of appeal, and has contravened no absolute rule, but has erred only in not complying with some technical form, it is the duty of the court to overlook such defect and entertain the appeal.
    At Law.
    Nos. 26,298 and 26,303.
    Decided November 25, 1889.
    The Chief Justice and Justices Hagner and James sitting.
    Motion to dismiss the appeals in these cases and to strike the causes from the calendar.
    These cases were actions brought to recover damages for mj uries received by plaintiffs in a railroad accident. Verdiets were rendered for $10,000 and $15,000, respectively. Motions for a new trial on bills of exceptions were made and overruled by the court below, and appeals being taken the plaintiffs moved in General Term to dismiss the appeals and to strike the causes from the calendar. The motion being as follows :
    “And now come the said plaintiff's by their attorneys, and appearing in the General Term specially for the purpose of objecting to the jurisdiction of the said General Term in each of said causes, and for no other purpose whatever, move the court as follows, to wit:
    
      “First. To declare that the bills of exceptions filed in the clerk’s office in each of said causes on the 15th day of July, 1889, form no part of the record thereof, and to expunge and strike them from the files of the court.
    “ Second. To dismiss the motion for a new trial upon bills of exceptions, filed in each of said causes in the clerk’s office on the 15th day of July, 1889, and—
    “ Third. To strike said causes from the calendar of the General Term.”
    Said motions are based upon the following grounds, amongst others, to wit:
    First. Said causes were tried at the January term, 1889, of the Circuit Court, which expired by limitation, and was adjourned without day on the 11th day of May, 1889, and said term was not prolonged by adjournment for the purpose of preparing bills of exceptions in said causes, nor did the counsel for defendants during said term prepare bills of exceptions and submit the same to counsel for plaintiff's, or notify them of any time at which it was proposed that the same should be settled, or that application would be made to the court to settle bills of exceptions at all, or to extend the term for that purpose. But said bills of exceptions were prepared, after the final adjournment of said term, and settled and signed on the 15th day of July, 1889, without the consent of the attorneys for the plaintiffs, and against their objections and protests.
    
      Second. The Chief Justice, who presided at the trial of said causes, had no authority or jurisdiction to settle and sign said bills of exceptions on the 15th day of July, 1889, when the same was done.
    Third. At the time said bills of exceptions were settled and signed, no motion for a new trial, or appeal, was pending, and the time had then expired within which the defendants could legally make such motion, or take such appeal.
    Fourth. The only motion for a new trial filed in said causes within four days after verdict, was a motion “ on exceptions,” addressed .to the justice who presided at the trial, of which the General Term could obtain jurisdiction only by appeal from the judgment of said justice overruling said motion, and no such judgment was made, and consequently no appeal was or could have been taken.
    Fifth. Said motion for a new trial “ on exceptions ” was defective in failing to state the specific grounds upon which it was based, and no notice was given to the attorneys for the plaintiffs of the filing of said motion, or of the intention of defendants’ attorneys to move the court to act thereon, and said justice could not properly, and did not take jurisdiction thereof, or act thereon, and the defendants’ attorneys abandoned the same.
    Sixth. No appeal has been taken by the defendants from any judgment of the Circuit Court in said causes, or from any judgment or ruling of the justice who presided at the trial.
    Seventh. No motion for a new trial upon bills of exceptions was made in either of said causes within four days after verdict, or at the term at which said causes were tried.
    Eighth. The motion for a new trial upon bills of exceptions, filed in said causes on the 15th day of July, 1889, was filed more than four days after verdict, and after the term at which said causes were tried, and was not filed in the Circuit Court.
    
      Ninth. Because said bills of exceptions were settled and signed, and said motions for a new trial were made, in vio.lation of the law' and the rules of said court in relation thereto, as set forth in sections of the Revised Statutes of the United States relating to the District of Columbia, numbered from 803 to 806, both inclusive, and the general rules of said court, numbered 2, and from '54 to 65, both inclusive, and 89, w'hich are hereby referred to and made a part of this motion.
    Messrs. W. A. Cook and Cole & Cole for the motion:
    1-. The bills of exceptions form no part of the record, because they were not settled and signed during the term, nor was a. definite period fixed by an order of the court, entered during the term, within which the same might be done.
    In pursuance of power granted by law this court, in Gem eral Term, has provided that the terms of the Circuit Court shall commence on the fourth Monday of February, the second Monday of May, and the third Monday of October in each year. R. S. D. C., Sec. 775 ; Rule 2.
    The act of Congress constituting this court provides that bills of exceptions are to be settled in such manner as may be provided by rules of the court, and authorizes the court in General Term to adopt rules regulating the practice of the court, and the rule of the court upon that subject provides that “The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it.” R. S. D. C., Sec. 770, 803; Rule 62, 26.
    This rule is in harmony with the rules of decisions of the Supreme Court upon the subject. Walton vs. United States, 9 Wheat., 657; Bradstreet vs. Thomas, 4 Peters, 102; Turner vs. Yeates, 16 How., 29; Muller vs. Ehlers, 91 U. S., 249; Coughlin vs. District of Columbia, 106 Id., 7; Hunnicut vs. Peyton, 102 Id., 354.
    2. The order entered purporting to extend the term is void as to these cases.
    
      It fixes no time within which the bills should be tendered.
    No case is found where an order has at any time been made by any court except this, allowing time for preparation of bills of exceptions after term, without limiting the time within which it should be done. And this is the universal practice, not only in the United States courts, but in the c.ourts of the several States. Hake vs. Strubel, 121 Ill., 321; People vs. Blades, 10 Id., 17; Dickey vs. Bruce, 20 Id., 445; Littleton vs. Leach, 71 Iowa, 52; Wicks vs. RR. Co., 14 W.. Va., and the cases there cited; 14 Blatch., 334; 24 Fed. Rep., 777.
    The only way to prolong a term by adjournment is to “adjourn”'to a specified day. The word “adjournment” as applied to courts and other deliberative bodies has two well defined meanings, to wit, an adjournment to a day certain, and an adjournment without day; the former is adopted when it is desired to preserve or “prolong” the session or term, and the latter when it is intended or desired to close it. It necessarily follows that the only way to “prolong” the term is to adjourn to a specified day, and that an adjournment without specifying a day when the term or session shall again meet for the purpose of continuing or finishing the business before it is a closing of the term. 1 Bouvier Law Dictionary, title Adjournment; Anderson’s Law Dictionary, title Adjournment; Century Dictionary, title Adjournment; Cushing’s Law and Practice of Legislative Assemblies'; Bank vs. Withers, 6 Wheat., 109; Van Dyke vs. The State, 22 Ala., 60; Brayman vs. Whitcomb, 134 Mass., 526.
    The order purporting to prolong the term is void because made without notice to, or the knowledge or consent of, the plaintiff’s attorneys.
    By rule of the court the term at which the cases were tried expired on the 11th day of May, 1889, and the bills of exceptions were to be signed within that time, unless the time was prolonged by the order of the court. If such order was to be applied for, plaintiffs were entitled to notice of the application. Mackey’s Practice, 234; Wade on Notice, Secs. 1184 and 1205 ; Hally vs. Williams, 8 Sm. & M., 487; Dickey vs. Bruce, 21 Ill. App., 445; Conley vs. Silverthorn, 9 Cal., 67; Calderwood vs. Brooks, 28 Id., 154; Campbell vs. Jones, 41 Id., 575; Oglesby vs. Attrill, 12 Fed. Rep., 227; B. R. & A. W. & M. Co. vs. Boles, 24 Cal., 356.
    The order purporting to prolong the term is void and inoperative upon these causes because not made in them.
    It is not apparent from the language of the order that the court intended it to apply to these, cases. They are in no way referred to by the language, nor does it necessarily include them. It does not say in all cases tried at that term. The presumption is that it was not intended to apply to these cases. .No application seems to have been made to the court for an extension beyond the term to prepare bills of exceptions in these causes. The language of the order does not purport to extend the term in order “to prepare” the bills of exceptions as the rule provides, but to “settle” them. The language of the order is applicable only to cases where the bills had already been prepared and submitted to the judge for “settlement” in matters in relation to.which counsel could not agree, and in which the judge had not had time to “settle” them. In such cases the excepting party having done all he could do, and not being-in default, would be entitled to his bills of exceptions, although not signed until after the expiration of the term, where the delay wras'for the convenience of the judge. Such were the cases of United States vs. Breitling, 20 How., 252; Davis vs. Patrick, 122 U. S., 138.
    3. The General Term has no jurisdiction of the motion for a new trial on “exceptions” filed May 3, 1889, because it was addressed to the Circuit Court, to be heard in the first instance by the justice who presided at the trial, upon his minutes, and he did not take jurisdiction of nor act upon the motion, and the same lapsed with the close of the term.
    
      The act of Congress organizing this court prescribes two methods by which a party may secure a review by the General Term of the rulings of the justice presiding at the trial upon questions of law, to which the complaining party has excepted before the jury retires.
    First. He may make a motion for a new trial, “ upon the bills of exceptions.” A motion thus made, though filed in the Circuit Court, is deemed and treated by law and the rules of the court as addressed to the General Term, and it has exclusive jurisdiction thereof, which is exercised in the first instance, and without awaiting any action of the Circuit Court or the justice who presided at the trial, other than signing the bills of exceptions. R. S. D. C., Sec. 806 ; Rule 54, Subdiv. 1.
    Second. Fie may make.a motion for a new trial “upon exceptions.” This means the exceptions taken by the party and noted by the justice in his minutes of the trial. Of a motion thus made the General Term can obtain jurisdiction in two ways only, to wit:
    First. By appeal from the judgment of the justice who presided at the trial, holding the Circuit Court, overruling the motion. R. S. D. C., Secs. 803, 804 and 805; Rule 54, Subdiv. 2.
    Upon such appeal “ the bills of exceptions,” properly settled and signed, are to be used in General Term in the same way as upon a motion made there for a new trial “ upon bills of exceptions.”
    Second. The General Term could obtain jurisdiction of a motion for a new trial “upon exceptions,” by certificate of the justice who presided at the trial, to whom it is addressed, directing it to be heard at a General Term in the first in-' stance. District of Columbia vs. Rapley, 6 Mackey, 526.
    The statutes and the rules of this court hereinbefore referred to make this distinction between a motion for a new trial “ upon exceptions,” and one “ upon bills of exceptions.” The one is addressed to the trial court, and is to be 'heard in the first instance by the justice who presided at the trial, upon his minutes, unless in his discretion he shall certify it to the General Term to be heard there in the first instance; the other is addressed to the General Term, and it alone has jurisdiction. And this distinction is made in the following decisions of this court: Doddridge vs. Gaines, 1 MacArthur, 335 ; Pabst vs. RR. Co., 2 Id., 48; Sinclair vs. RR. Co., MacA. & Mack., 17 ; McPherson vs. Cox, Id., 29 ; District of Columbia vs. Rapley, supra.
    
    Under these rules and decisions the motion of the 3d of May 1889, for a new trial “ on exceptions” must be treated as a motion made upon the minutes of the justice who presided at the-trial, and addressed to him. He did not take jurisdiction of it. No order was made overruling or continuing it. It must, therefore, be deemed to have lapsed or to have been abandoned, or to have been overruled by force of the rule — Rule 60..
    It is immaterial whether it be consider as abandoned, lapsed, or overruled, for if the latter, there 'has been no appeal from the judgment overruling it, nor has there been any appeal from any judgment of the Circuit Court in either of these causes. The entry of an appeal is necessar}in order to give the General Term jurisdiction. R. S. D. C., Sec. 770; Rule 89; Knapp vs. Post, 10 Hun., 35; Bond vs. The Bank, 65 Md., 501; Bank vs. Mackall, 11 G. & J., 456.
    The motion for a new trial on exceptions was too vague and indefinite, and the justice who presided at the trial properly declined to consider it. .
    The rule of court requires that every motion for a new trial shall state the specific grounds upon which it is based, and this is in harmony with^the rule of decision of all courts upon the subject. Rule 58.
    The term “ on exceptions ” is not a compliance with this rule. The attention of the court and opposing counsel should be called to the specific exceptions upon which the motion is based. McLain vs. Dibble, 13 Bush., 297 ; Maux vs. Maux, 81 Ky., 475 ; Railroad Co. vs. McCoy, Id., 403.
    4. The General Term has no jurisdiction of the motion for a new trial on “ bills of exceptions ” filed July 15,1889, because it was not made within four days after verdict. Rule No. 58.
    This is a limitation of time within which an existing right must be exercised. The court has no power to disregard it or relax it in a given case. Coughlin vs. D. C., 106 U. S., 7; Houston vs. Kidwell, 83 Ky., 301; Ins. Co. vs. Kiernan, Id., 468; Harvey vs. Fink, 111 Ind., 249 ; Conley vs. Silverthorn, 9 Cal., 67 ; Calderwood vs. Brooks, 28 Id., 154 ; Campbell vs. Jones, 41 Id., 515; Wills vs. Rhen Kong, 70 Id., 548.
    Messrs. Enoch Totten and H. H. Wells for defendant:
    The course of practice pursued in these causes was in compliance with the statutes and the rules and usages of the court.
    In Doddrige vs. Gaines, 1 MacArthur, at page 339, the court say: “ The bill of exceptions need not be signed or sealed by the judge, but is to be settled by the judge; that is, in some way certified to the appellate court, that the bill of exceptions truly and correctly presents the questions raised before him on the trial now decided.” This also has been done. In Johnson vs. Douglass, 2 Mackey, 36, a number of cases are mentioned as showing that where the bill has actually been certified to the General Term the appellate court will presume that what was done by the judge was lawfully done — for instance, in United States vs. Wilkinson, 12 How., 246, where the date of the hill of exceptions was April 8, 1848, but the trial did not commence until May 7 and 8, 1849, the court said it was doubtless a clerical error, and as the court had settled the bill of exceptions and certified the same to the court as taken in that cause, it was conclusive. See, also, Dredge vs. Forsythe, 2 Black, 568; United States vs. Breitling, 20 How., 252; Walton vs. United States, 9 Wheat., 657; Turner vs. Yates, 16 How.; Johnson vs. Douglass, 2 Mackey, 36; Stanton vs. Embrey, 93 U. S., 548; Hunnicutt vs. Peyton, 102 Id., 333; Ex parte Crane, 5 Peters, 199.
    The .statutory provisions relating to signing bills of exceptions, so far as the questions involved here are concerned, are Sec. 803, R. S. D. C., Secs. 705 and 953 R. S., and the Statute of Westminister, 2 (13 Edw. I, Ch. 31; Alex. Brit.' Stat., 126). In cases where it may be desired to go to the Supreme Court of the United States from this court, the bill must be signed by the judge, although Sec. 803 R. S. D. C., says, it need be neither signed nor sealed; the common law provisions must also be observed. Riggs vs. Thompson, 5 Wall., 663 ; Origet vs. U. S., 125 U. S., 240.
    Section 803, R. S. D. C., provides that if an exception be taken during the trial, it may be entered on the minutes of the justice and afterwards settled in such manner as may be provided by the rules of the court. Neither the rules of court nor the statute limit the time for settling, signing or filing bills of exceptions. That branch of the practice is confided wholly to the discretion of the trial judge, except that the sixty-second rule, in a directory way, provides that in_cases where the bill is not'signed during the term, the term “may be prolonged by adjournment in order to prepare it.” But it is left to the discretion of the trial judge to determine when the bills shall be presented. When additional time has been granted by the court counsel cannot be held responsible for the form or substance of the order. This branch of the objections to the proceedings is a mere criticism upon the language which this court chose to use in making its rules. In cases where the trial judge extends the time for settling the bill of exceptions, without limiting the period within which the bill shall be presented, it is an act in the exercise of his discretion which an appellate court cannot revieiv. The Supreme Court has repeatedly declared that the time within which the bills shall be presented rests in the discretion of the presiding judge, and he, and he alone, is to determine what is a reasonable time for such presentation. Hunnicut vs. Peyton, 102 U. S., 354; United States vs. Breitling, 20 How., 252; Stanton vs. Embrey, 93 U. S., 548; Dredge vs. Forsyth, 2 Black, 564; Phillips vs. Mayer, 15 How., 160; Turner vs. Yates, 16 Id., 28.
    Appellate courts will sustain the rights of parties to a hearing on their exceptions where the exceptions have been reserved during the trial and a fair effort made to comply with the rule, and the courts will disregard their own rules for this purpose in the interests of justice.
    The Supreme Court, speaking through Taney, C. J., declared that it, “ is always in the power of the court to suspend its own rules, or to except a particular case from its operation, whenever the purposes of justice require it.” United States vs. Breitling, 20 How., 354; Hunnicut vs. Peyton, 102 U. S., 358; Embrey vs. Stanton, 93 Id., 548.
    This motion of May 3, taken in connection with the undertaking amounts to an appeal, and the approval on the paper signed by defendant’s counsel, amounts to notice and consent by the plaintiffs. See Marye vs. Strouse, 5 Fed. Rep.; United States vs. Breitling, 20 How.; Muller vs. Ehlers, 91 U. S., cited above. The steps taken in these cases constitute an appeal.” Section 772 enacts that—
    “Any party aggrieved by any order, judgment, or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the General Term.”
    The Supreme Court has settled it that when the party intending to appeal, signifies his intention of so doing,-that fact is sufficient, however informal the paper may be. United States vs. Adams, 6 Wall., 101. In the case cited the paper filed (in the Court of Claims) for the purpose of taking an appeal, contained the title of the cause, was signed by counsel, and merely stated that the United States made “ application ” to that court “ for an appeal óf the case •* * * to the Supreme Court of the United States.'” This was held to be sufficient.
    
      Even if the motions for new, trials of May 3, should be held'to have been addressed to the discretion of the trial justice under section 804, R. S. D. C., and paragraph 2 of rule 54, the practice was unobjectionable and effectually removed the cases of the General Term.
    This very question has been passed upon and settled by the Supreme Court in Moore vs. Met. RR. Co., 121 U. S., 558.
    In McPherson vs. Cox, MacA. & Mack., 23, the court says:
    “We have no writ of error; we'have a bill of exceptions. We regard a motion made in this court, based upon a bill of exceptions, as equivalent to a writ of error itself, and therefore we look only at the matter of law it contains.”
    If the motions of May .3 were erroneous, the motions filed with the bill of exceptions effectually removes the- case into the General Term.
    Undoubtedly the better practice is to file the motion for a new trial, on a bill of exceptions, at the same time with the bill of exceptions. There is an appearance of absurdity in the very recent practice of filing a motion for a new trial within four days. This practice began with the advent of the new rules which, some argue, require all motions for new trials 1o be filed ivithin jour days. But this interpretation of the rule is erroneous. The rule is the same, precisely, as it was prior to the adoption of the new rules with the unimportant direction (and it is only directory) that such motions, i. e., motions for new trials on a case or bill of exceptions, shall be filed in the Circuit Court instead of in the General Term, as was allowable previously.
    It may be well remarked here, that this change in the old rule is merely a change in words; to say that the motion to be filed in the General Term or in the Circuit Court suggests only a distinction without a difference, because in either case, we should be obliged to hand the paper to the same man, who would in either case note or record it in the same book and file it in precisely the same place. The statute (section 753) says all our terms are one term and all our courts are one court (see Moore vs. Railroad, 121 U. S., 513), and this is in fact true.
    In O’Neal vs. District of Columbia, Mac A. & Mack., 68, this matter was again considered. A bill of exceptions is then again defined by Mr. Justice Cox, delivering the opinion of the court, and it is further said, “ It is only when the findings of fact are to be reviewed in General Term, that a case differs from a bill of exceptions. Then a motion for a new. trial presenting simply questions of láw should be made in General Term.”
    At page 71, it is further said : “ In this there was no motion [a motion for a new trial for insufficient evidence or excessive damages], and consequently [such motion] is not properly before the court. The question then presented for the court here arises upon the bill of exceptions only.”
    In Lewis vs. Shepard, 1 Mackey, 46, it was contended that the rules of practice of this court do not require any motion for new trials to be made within four days after verdict, except such as are to be heard by the justice who tried the cause, and that they make no requirements as to the time and place of filing a motion or bill of exceptions. No motion was in fact filed in the court below', and the plaintiff objected to the settling of the bill of exceptions. The bill, however, was considered, the case entertained, and the judgment of the court below reversed.
    In United States vs. Angney, 6 Mackey, 66,which was a motion for a new trial in a criminal case, the district attorney objected to the consideration of the motion because it was indefinite, and he objected to the consideration of affidavits supporting it. After saying that the motion was so indefinate as to make it doubtful whether the sufficiency of the indictment was presented thereby, and that the filing of the affidavits was undoubtedly irregular, the court said:
    “Undoubtedly, however, the time within which the motion may be filed, or the showing in whole or in part be made, might have been extended by the trial court; and undoubtedly that court might, and this court may, entertain and consider the subsequent affidavits.”
    The only materiality of this case is that it shows that it is entirely within the discretion of this court to extend the time or amend the form in which proceedings may be taken for new trials; that' the rules are always subject to be changed or constructed at the discretion of the court.
   Mr. Justice Hagner

delivered the opinion of the Court:

Motions to dismiss the appeals are made in these cases. The facts, in brief, are as follows: On the 1st of May, 1889, the jury rendered a large verdict in each case for the plaintiff. On the 3d of May (within the four days limited by the rule) the defendant’s counsel made the motion for a new trial which is the subject of the present controversy. On the 8th of the month supersedeas bonds were filed, which were indorsed as satisfactory by the plaintiff’s counsel and affirmed by the court. On the 11th the court passed the order extending and prolonging the term for the purpose of settling exceptions in cases tried at the term, where the bills had not been settled. On the 20th of June, the defendant’s counsel gave notice to the counsel of the plaintiff that the bills of exceptions would be presented to the presiding justice on the 25th of that month. On that day the plaintiff’s counsel appeared and interposed objections in writing, on various grounds, to the settling of the exceptions. After argument these objections were overruled, and the bills were finally settled and signed on the 15th of July.

The reasons assigned, and earnestly pressed in support of the motion to dismiss the appeal, attack the regularity and efficacy of every step we have alluded to from the first notice of the motion for a new trial.

1. This motion of the defendant’s counsel, made in open court on the second day after the verdict, is in these words: “ Now come the defendants and move the court to set aside the verdict and grant a new trial on exceptions.”

It is insisted by the plaintiffs that this must have been designed at the time and can only be understood as a motion under section 804 of our Revised Statutes, and hence it cannot now be regarded as such an appeal to the General Term as will authorize us to examine the rulings below,-as presented by the bill of exceptions contained in the record.

The provisions of the Revised Statutes District of Columbia upon the subject of motions for new trials, are:

Sec. 803. “If upon the trial of a cause an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the question to be raised, but such case or bill of exceptions need not be sealed or signed.

Sec. 804. “The justice who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages, but such motion shall be heard at the same term at which the trial was had.”

Sec. 805. '“ When such motion is made and heard upon the minutes, an appeal to the General Term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.”

Sec. 806. “A motion for a new trial on a case or bill of exceptions, and an application for judgment on a special verdict or a verdict taken subject to the opinion of the court shall be heard in the first instance at a General Term.”

The defendant’s counsel insist their motion was intended to be made under section 806, and not under 804 and 805. They admit the language of the motion is imperfect and incorrect, because of the omission of the words “bill of;” but they insist this was a mere clerical error which should not affect the efficacy of the motion.

The motion cannot be considered as strictly following the method indicated by either-of the sections referred to.

If the defendant had intended to present a motion literally complying with the requirements of section 804, and rule 54, applicable thereto, he would have explicitly asked the justice who tried the cause to entertain a motion to be made on his minutes to set aside the verdict and grant a new trial “ upon exceptions,” &c. The actual motion seems to differ more in language from that thus indicated than it does from the literal requirements of section 806.

We must look to the surrounding circumstances of the transaction for guidance as to the purpose of the motion.

If the defendant had been proceeding under section 804, and the justice had decided to “entertain the motion,” it would have been the duty of counsel on both sides to submit or argue it before the justice; and if it had been overruled the defendant could then appeal ■from that decision to the General Term.

But no such steps were taken here as are required under sections 804 and 805; and the omission to pursue those methods of obtaining the benefits of these sections tend to show that they were not in the contemplation of the defendant.

On the other hand, if the purpose was to proceed under section 806, all was done by the defendants, after the imperfect motion was made in open court, that was required to obtain the benefit of that section.

On the 8th of May supersedeas bonds were filed by the counsel for the defendants, and after being submitted to the counsel for the plaintiffs, who pronounced the sureties satisfactory, they were approved by the justice. Now, if the defendants had been proceeding under section 804 no supersedeas bond would have been presented at that stage, for no such bond is necessary while the trial justice is hearing.a motion for a new trial on exceptions noted on his minutes, since no execution could issue while the motion was pending. But the counsel for the defendants took the trouble, before this supersedeas bond was submitted to the court, to secure from the counsel for the plaintiffs his approval of the sureties. It may be said the plaintiffs’ counsel was not obliged to set his opponent right, if he then thought he was doing a futile thing in giving a bond where none was needed. But still his conduct in certifying to the sufficiency of the bond looked as if he was acting at that time in accordance with what the defendants now insist was their object in filing the motion ; we do not say it is conclusive of the question, but we think it is persuasive to us of the understanding of those interested in the matter at that time, and especially of the understanding of the justice when he approved the bond.

That the defendants’ counsel intended to take efficient steps to procure a review of the rulings of the lower court cannot be doubted; that his motion was carelessly worded is equally clear. But in the light of the surrounding circumstances we entertain no doubt as to the particular form of review he wished to avail himself of. If the motion had been framed in faulty grammar or incorrectly spelled, it would not have been rejected as insufficient so long as it was not insensible; and we cannot consider that the omission of the two words, “ bills of,” invalidates the motion of the 3d of May.

2. It is next said that the motion is invalid, because it does not comply with rule 58, which requires that all motions for a new trial shall particularly enumerate the grounds upon which the motion was made, in separate paragraphs, &c.

The preceding rule contains a form of the motion there under discussion, which is that to be made to “the justice who tried the cause.” Such an enumeration is requisite under section 804; but not under section 806, there the object is to procure a review of all the rulings already enumerated in the exceptions.

3. The next point made is that we cannot entertain this appeal because the bill of exceptions was submitted to and signed by the judge after the expiration of the term; and it is said, first, that there is no authority in the court to extend the term for any such purpose. We have a rule, No. 62, explicitly saying that it can be done, and that rule is one that is certainly within the power of the court to make. Section 770, of the Revised Statutes, provides that “ the Supreme Court, in General Term, shall adopt such rules as it may think proper, to regulate the time and manner of making appeals from the Special Term to the General Term, and may prescribe the terms and conditions upon which such appeals may be made, and may also establish such other rules as it may deem necessary for regulating the practice of the court, and from time to time revise and alter such rules.” This is ample power for making rule 62. The courts would be in a very bad predicament unless there was some such power lodged in them, for it not unfrequently happens — it is almost always the case — that most important causes are tried at the end of the term, the -bills of exception in which cannot be settled during the progress of the trial, which for weeks drags itself along until the end of the term. It would often be impossible to settle the bills of exceptions in such a state of case, and if the court was without authority to pass such a rule, parties would be deprived of all means of presenting their cases to the appellate court for review, unless the court should discontinue the trials for a considerable time before the end of the term, which would involve the loss of much valuable time at the close of each term.

4. On the last day of the term the presiding justice passed the order before referred to, which was entered on the minutes by the clerk in these words: “The court orders the term of the court extended and prolonged to settle bills of exceptions and cases.”

It is contended by the defendants that this order is not justified by the rule referred to, which is as follows:

Rule 62. The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it.

First. Because the order authorized an indefinite extension of the term, whereas the rule speaks of an adjournment, which it is insisted necessarily implies prolongation to a definite day. The derivation of the word is appealed to as supporting the contention, and that in parliamentary bodies every adjournment must either be to a day certain, or sine die, and that an indefinite adjournment, as in this case, necessarily implies a final adjournment.

Although it would evidently be advisable to limit the time within which the bills of exceptions should be presented, we do not consider the omission to do so in this instance as having the effect insisted on. The final closing of the term was a matter wholly within the power of the court at any time, when the justice should be of the ojiinion that a sufficient indulgence had been extended for the purpose of presenting the bills of exceptions. Such orders have been on other occasions recorded in this form by the clerk.

Second. It is said to be unauthorized, because it does not specify the cases which were designed to be included in the order.

We do not think' this objection can be sustained. The order was broad enough to include the present cases, and that others could have been embraced within its general language could not deprive these parties of their rights. We repeat the remark, that it would be decidedly preferable that there should be an enumeration of the cases left open entitled to claim the benefit of the order.

5. Then it is next said the justice had no right to pass the order without notice -to the plaintiffs; but they had the notice that was given to the whole world when this entry was made on the minutes of the court, and that was all the-notice required.

6. Then, had the justice the right to sign the exceptions. when they were presented to him ? No complaint can he made on the ground of lack of notice, as the defendants gave notice, and the plaintiffs were present according to the notice, and contested the right of the court to settle the bill of exceptions. We think the justice had that right, and that the exceptions are properly before us on appeal.

All appellate courts are aware that appeals are increasing in undue proportion to the general increase of legal business. This undue increase is a grievance and a reproach to the judicial system. The facility of presenting appeals encourages their prosecution where delay may be the main purpose, to the serious injury of deserving suitors. The appellate courts should do nothing to encourage this, although they may be powerless to prevent it, and it is their duty to refuse to entertain appeals where they present themselves in contravention to law or explicit rules.

But when we can see that a suitor has made an honest effort to exercise his legal right of appeal, and has contravened no absolute rule, but has erred only in not complying with some technical formality, we think it is our duty to overrule such a defect and entertain the appeal.

The motions are overruled.  