Clark v. Brown

It is not a matter of course to allow a party to turn a case into a bill of exceptions. On a case, the decision of the supreme court is final, but on a bill of exceptions, the parties can go to the court of dernier resort. And whether they shall be allowed to do so, must depend upon the gravity of the case, and the nature of the questions involved.

The question involved in this case, is whether the plaintiff has a right to use a lane without a gate, his right to use it with a gate being undisputed. This is . scarcely of importance enough to go to the Court of Appeals with; especially after the case has been three times tried at the circuit, and three times argued before the supreme court.

Nor can I conceive that there are questions of law in the case, of sufficient importance to justify or warrant a review. The first question of evidence does not involve any matter of principle, but merely what was meant by the language in which the *217defendant clothed his offer of proof. The second question, as to the offer to prove that the defendant had denied the right of way, is of no moment; for the right of way was not sought to be founded on an acquiescence, but upon an adverse possession. And the third question of evidence, viz. the offer to prove that the witness, Mrs. Strang, had said that she had bad feeling towards one of the parties, is not worthy of review, because the exclusion of the evidence was clearly right; on the familiar principle that a witness shall not be allowed thus to disqualify himself, and deprive a party of the benefit of his evidence.

The motion for leave to turn the case into a bill of exceptions must, therefore, be denied. There must, however, be a re-taxation of costs, not as a matter of right, but from the suggestion that there were errors in the former taxation. On such re-taxation, the plaintiff may include any items not in his former bill, which are properly taxable, and also his costs of opposing this motion.