Page:Federal Reporter, 1st Series, Volume 10.djvu/673

 WHALEN V, SBEBIDAK. 661 �Whalen V. Sheeidan. ICireuit Court, 8. D. Neu) York. October 5, 1880.) �1. Pbactice— Billi OF Exceptions — Rulb op Diligence. �Poverty or pecuniary embarrassment is not a sufflcient ground for a motion for leave to flle a bill of exceptions nune pro tune. It is not an " extraordinary circumstance" such as will defeat the rule of diligence in civil procedure in the federal courts. �2. Review in Federal Coukts— Hulbs of Phactice. �T)ie System of review on writ of error established by a statute of the United States is so far diiierent from an appeal under the Code of New York, which provides for the review of rulings excepted to on the trial, that the provisions of the State statutes do not govern prOceedings under it. �Motion for leave to file and serve a bill of exceptions nunc pro tune. �Scott Lord, for the motion. �A. B. Herrick, Asst. Dist. Atty., opposed. �Choate, D. J. The plaintiff has been allowed to renew his motion (5 Fed. Rbp. 436) to file and serve a bill of exceptions, upon further afSdavits; but I am unable to find that the additional facts now stated make out a case of extraordinary circumstances, such as is required under the authority of Muller v. Ehlers, 91 U. S. 249, for the exercise of the power of granting the relief asked, Those facts are that after the trial of the cause the plaintiff, being unable to pay to his attorney the fees that were due to him, and whioh he demanded, the attorney refused to act further for him, although he continued to be the attorney of record for the plaintiff. Another counsel was employed to argue the motion for a new trial, but he did not as- sume the responsibility of the attorney in the cause, and left for Europe soon after the argument. The plaintiff himself was not aware of the expiration of the time limited for preparing and filing his bill of exceptions, and was absent in other states during part of the time that elapsed between the decision of the motion for a new trial and the suing out of the writ of error; and the preparation of the exceptions was deferred and neglected, under the impression that all the voluminous testimony taken on the trial must be included, which would involve an expense far beyond the plaintiff 's means. It was not determined positively by the plaintiff and his advisers to take the case to the supreme court till the idea was suggested that the review should be asked on a single point of law which is presented by the proposed bill. By that time the. time limited for filing the excep- ��� �