Cummings v. McKinney

Citations

• 5 Scam. 57

Syllabus

<p>Appeal f> om Lee.</p> <p>1. Evidence — notice to produce, A party is not bound to pay any attention to a verbal notice to produce a paper on the trial of a cause, where the notice is required to be served before trial. The notice should be in writing. Whether a written notice is served in time is a matter of sound discretion with the court. Where it |_* 5§] appears to the court that the party has, in court, the desired paper, notice given on the trial would be sufficient; but when this does not appear, the notice should be served a reasonable time before the trial, unless the paper be one which the party possessing it must have known would be indispensable to his adversary, in which case it is unnecessary to give any notice. But in an action against a constable for. neglect of duty, in failing to levy an execution, a bond to indemnify him for levying the writ is not such a paper.</p> <p>2. Instructions — proposition. ¡ A court is not bound to give instructions upon abstract principles of law. (a) </p> <p>3. Bill OP exceptions — presumption. The supreme court will presume that a party has incorporated every thing into his bill of exceptions, which is necessary to present the full merits of his case upon the point about which he complains.</p> <p>4. Constable — indemnity. It is not true that in no case can a constable require a bond of indemnity, before he is compelled to take property on execution.</p> <p>5. Record — -clerlis certificate no part of. If a party excepting to the decision of a circuit court in overruling a motion for a new trial, desires to avail himself, in the' appellate court, of the affidavit upon which the motion was founded, he should incorporate it into his bill of exceptions, or refer to it, and identify it, in his bill of exceptions. The court will not notice an affidavit merely certified by the clerk to have been filed in the cause in the court below. (b) </p>