Rosenthal v. Ehrlicher
Rosenthal v. Ehrlicher
Opinion of the Court
Opinion by
The check sued on in this case was drawn by Erlicher Brothers, the appellants, in this city, where they reside, and on the Spring Garden Bank. The plaintiff in whose favor it was drawn lived in the city of New York. The check was drawn and delivered to the agent of the plaintiff at the defendants’ place of business in Philadelphia on the fifth day of May 1891. He returned to New York on the afternoon of that day, arriving after the close of banking hours, and delivered the check to his principal. On the Sixth, it was placed in a bank for collection. The bank sent it forward to its Philadelphia correspondent for collection on the seventh. It was received and presented about noon of the eighth, but the bank had already closed its doors, and the check was not paid. These dates, about which there seems to be no question, show the exercise of due diligence in the use, transmission and presentment of the check. There was no suggestion of any defence upon the
But there are'other assignments of error before us that, while they raise no question, suggest the desirability of directing the attention of the bar to the purpose and office of assignments of error and bills of exceptions. For example, the fourth assignment is in these words: “ The learned judge erred in directing a verdict for the plaintiff upon the testimony of the plaintiff alone without allowing the defendants to offer evidence in support of their side of the case and in support of the affidavit of defence filed therein.” No bill of exceptions accompanies or forms part of this assignment; and we have examined the record for some evidence that such an offer and ruling were made on the trial as the assignment assumes; but we find none. The assignment must fall therefore because it rests on no offer or ruling such as it complains of. The fifth assignment complains of the refusal of the learned judge “ to allow the plaintiff to prove that said plaintiff’s son Morris was the plaintiff’s agent, with authority to indorse all checks drawn to the plaintiff’s order and to present and draw the same at bank.” Neither in the assignment nor elsewhere in the record can we find that such an offer was made and refused. This assignment also falls in the same manner as the fourth. The purpose of an assignment of error is to place upon the records of this court the specific ground of complaint on the part of the appellant. It should state the answer or instruction complained of, or the offer, the objection and the ruling of the court in the admission and rejection of evidence, and invariably in the latter class of cases the fact that an exception was taken and allowed by the judge should also appear in connection with the assignment.
Some little confusion has arisen, growing out of the changes consequent upon the general use of stenographers in the trial courts, and the differences of opinion entertained about the relation of the stenographer’s notes to the record of an action at law. The practice formerly prevailing was well settled and well understood. Bills of exception to the admission and rejection of evidence were, within the recollection of most law
In regard to exceptions to the charge of the court the practice had been greatly modified by legislation before stenographers were introduced into the courts. Under the act of 1806, it will be remembered either party to an action might require the judge to reduce his opinion, together with the reasons therefor, to writing, “ and to file the same of record in the case.” The act of 1856 went a step further towards simplifying the work of excepting to the charge. It provided that either party
Before leaving the general subject of stenographers and stenographic notes, it is desirable to direct attention to another topic. Some records have been before us during the present term in which the stenographer’s notes were certified to by a firm in the firm ñame. The question has not yet been raised whether such a certificate has any value, but if this practice is continued it soon will be. We do not see how a partnership can be an officer of the court. How shall it be sworn and its oath of office be entered on the record ? How shall the work done by clerks or individual members of the firm be certified to ? How shall the partnership be punished for the disobedience or misconduct of the individuals who compose it or the persons whom it employs? It would be equally practicable to fill a vacancy
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- Banks and banking — Diligence in presenting check. Defendants drew a check in Philadelphia, where they resided, on a bank of that city. Plaintiff, who was the payee of the check, lived in the city of New York. The check was drawn and delivered to the agent of plaintiff at defendant’s place of business in Philadelphia on May 5, 1891. The agent returned to New York on the afternoon of that day, and delivered the check to his principal, after the close of banking hours. On May 6th it was placed in bank for collection. The bank forwarded it to its Philadelphia correspondent for collection on May 7th. It was received and presented about noon of May 8th, but the bank had already closed its doors, and the check was not paid. Held, that plaintiff had used due diligence. Practice, Supreme Court — Assignments of error. An assignment of error should state the answer or instruction complained of, or the offer, the objection and the ruling of the court in the admission and rejection of evidence, and invariably in the latter class of cases the fact that an exception was taken and allowed by the judge should also appear in connection with the assignment. It is improper to assign error as follows: “The learned judge erred in directing a verdict for the plaintiff upon the testimony of the plaintiff alone without allowing the defendants to offer evidence in support of their side of the case and in support of the affidavit of defence filed therein.” Practice, C. P. — Exceptions—Stenographers. The appointment of a stenographer is the act of the court, and should be made a matter of record. The stenographer should be sworn and that fact, or, better, a copy of his oath of office should appear among the records of the court. When so appointed and qualified he becomes an officer of the court appointing him. His duty is to record fully and accurately all that transpires upon the trial of causes, all the oral testimony given, and all the instructions given by the trial judge to the jury. When an offer is made to prove a fact or to use a person as a witness, the offer should be entered at length on the stenographer’s notes. If an objection is made to the admission of the evidence, or the person, this should also be put on the notes. When the court rules upon the offer the ruling should be fully and correctly set down. If an exception is taken to the ruling this should be stated, and if the judge directs that the exception be noted this fact should be stated. But the noting of an exception is the work of the judge. The stenographer cannot note one unless he is directed so to do by the judge trying the cause. If the judge refuses to allow an exception the stenographer should state the fact on his notes, but he should not attempt to note or allow an exception simply because an objection has been made and overruled in his hearing, nor because counsel request him to do so. The direction to note an exception or seal a bill must come from the judge. Per Williams, J. ’ When the stenographer’s notes ol trial have been duly filed of record, an appellant may assign as error any instruction appearing in the charge, or any answer to points, whether the particular point had been previously made or not. It is nod proper practice for the stenographer’s notes to be certified to by a firm of stenographers in the firm name. Per Williams, J.