Page:Federal Reporter, 1st Series, Volume 5.djvu/449

 WHAI/EN V. SHEHEDAS. 43T �costs. On the thirteehth of April, 1880, a writ ot error #as allowed, bond filed, and citation served. On the same day a proposed bill of exceptions was served on defendant's attor- ney, and returned to the plaintiff's attorney. On the twelfth of Aiigust, 1880, this motion is made. The plaintiff's affi- davit shows that from about the twenty-fifth of Pebruary to the latter part of May, 1880, he was confined to his bed by severe sickness, and. unable to attend to business ; that when he partially recovered "he was unable, though continually endeavoring for a long period of time, owing to his proverty, sooner to serve exceptions, as, owing mainly to such protracted sickness, he had no means to pay counsel to prepare the same." The term of the court at which the judgment was entered expired April 3, 1880. ' �It is entirely clear that upon these facts the motion must be denied. The rule goveming the case is thus laid down by the supreme court in Muller v. EMers, 91- U. 8. 251 : "As early as Watton v. U. S. 9 Wheat. 651, the power to reduce exceptions taken at the trial toform, and to have them signed and filed, was,.under ordinary circumstances, confined to a time not later tban the term at which the judgment was ren- dered. This, we think, is the true rule, and one to, which there shohld be no exceptions, without an express order çf the court during the term, or consent of the parties, saye under very extraordinary circumstances." Without consider- ing the question raised by defendant's counsel of the power of the court to grant the motion, it is enough to say that the plaintiff fails entirely to show any extraordinary circum- stances justifying the exercise pf the power. He had 60 days from August 27, 1879, expressly granted for the purpose of preparing his exceptions. The term continued till the third of April, and during ail this time he neither shows any dis- ability on his part, nor makes any explanation of his delay and failure to act, which can be accepted as a satisfactory excuse for inaction. He did not even ask the court, during the term, to extend his time to prepare his bill of exceptions, nor does he show any excuse for not asking further time. To grant the motion would be a mere evasion of the rule de- ����