CHAP. I. SECT. I. TENDERING BILL OF EXCEPTIONS, &c.

dence, under the before-mentioned statute Westm. 2, (13 Edw 1, c. 31.)

Since that statute, if the judge at nisi prius, either in his direction or observations to the jury, mistate the law, the counsel, on either side, who considers such mistake may prejudice his client, should immediately respectfully object or remonstrate, and state the grounds of his objections, and he may then publicly require the learned judge to seal a bill of exceptions, stating the points upon which the judge has erred, or rather the grounds upon which the evidence adduced by him is admissible, or that offered by the defendant is inadmissible. And if he refuse to seal, the party may have a compulsory writ against him, commanding him to seal it, if the fact alleged be truly stated; and if he return that the fact is untruly stated when the case is otherwise, an action will lie against such judge for making a false return. This bill of exceptions is in the nature of an appeal, examinable however not in the Court out of which the nisi prius record issued, (for the trial at nisi prius,) but in the next immediate superior Court, upon a writ of error, which is to be issued after judgment given in the Court below. It has been considered by some counsel better to take this more straightforward course of tendering a bill of exceptions, instead of moving for a new trial. (1)

A Demurrer to Evidence is to be determined by the Court out of which the record was sent. This happens where a record or other matter is produced in evidence, concerning the legal consequences or effects of which there arises a doubt in law, in which case the adverse party may, if he please, demur to the whole evidence, which admits the truth of every fact that has been alleged, but denies the sufficiency of them all, in point of law, to maintain or overthrow the issue, which draws the question of law from the cognizance of the jury, to be decided (as it ought) by the Court. (m)

Such formerly were the usual modes of redress against mistakes or errors arising upon a trial, and they prevented the judge from excluding proper evidence, and from perverting the law by admitting improper evidence, or inducing the jury to find an improper verdict, and subjected the judge's

(1) Doe d. Tatham v. Wright, 6 Nev. & Man. 145.

(m) 3 Bla. Com. 372; and Butler v.

Bulkeley, 2 Bar. & Cres. 434; 3 Dowl. & Ryl. 625, S. C.

opinion to correction in the superior Court, in case he refused to do justice; but as the tendering a bill of exceptions, and the proceedings thereon, are attended with considerable expense in modern times, since the extension of the discretionary power of the full Court in banc in granting new trials, questions of misdirections of judges at nisi prius and the like, have more frequently been brought before the Court, and canvassed in the shape of motions for new trials, and bills of exceptions and demurrers to evidence are now but rarely resorted to. (n)

(*) See further Bull. Ni. Pri. 313 to 320; Money v. Leach, 3 Burr. 1692; Symers and another v. Regem, Cowp. 500; Davies v. Pearce, 2 Term Rep. 53; and Gibson v. Hunter, 2 Hen. Bla. 198, where there is a form of a demurrer to evidence and joinder. At all events, when a counsel finds that the presiding judge is influenced by an erroneous view of the law affecting the rights of the parties, or of the evidence that has been adduced, and therefore persists in admitting improper evidence, or in misdirecting the jury respecting such evidence, or the verdict they should give, he should promptly in

terfere in the most respectful, but never-
theless firm manner, avoiding all possible
appearance of disrespect, but offering to
establish that the law has been ruled
otherwise, and referring shortly to autho
rity or reasoning on the subject, and beg.
ging the judge so to rule or to allow him
to raise the point by tendering a bill of
exceptions, so as to afford an opportunity
for the fullest discussion, and as the only
mode of taking the opinion of the Court.
And the counsel should have ready pre-
pared the best terms of objection to be
inserted in the bill of exceptions.

CHAP. I.

SECT. I. TENDERING

BILL OF EXCEPTIONS, &c.

evidence in K. B.

as to the effect of

to wit. Be it remembered, that in the term of -, in the year of the Bill of excepreign of our sovereign lord George the Fourth, now king of the united kingdom of tions separate Great Britain and Ireland, &c. came A. B. by his attorney, into the Court of from the record, our said lord the king before the king himself at Westminster, and impleaded C. D. in a certain plea of trespass on the case upon promises; on which the said A. B. declared against him, that, &c. [set out the declaration and other pleadings, and proceed as follows:] And thereupon issue was joined between the said A. B. and the said C. D. Aud afterwards, to wit, at the sittings of nisi prius, holden at the Guildhall of the city of London aforesaid, in and for the said city, on the day of, in the year of the reign of our said lord the king, before the Right Honourable Charles Lord Tenterden, chief justice of our said lord the king, assigned to hold pleas in the Court of our said lord the king before the king himself, John Henry Abbott, Esquire, being associated unto the said chief justice, according to the form of the statute in such case made and provided, the aforesaid issue so joined between the said parties as aforesaid came on to be tried by a jury of the city of London aforesaid, for that purpose duly impanelled, that is to say, E. F. of - and G. H. of -, &c.

[names and additions of jury,] good and lawful men of the said city of London: At Evidence given which day came there as well the said A. B. as the said C. D. by their respective for plaintiff, and attornies aforesaid; and the jurors of the jury aforesaid, impanelled to try the said defendant's eviissue, being called, also came, and were then and there in due manner chosen and dence. sworn to try the same issue; and upon the trial of that issue, the counsel learned in the law for the said A. B. to maintain and prove the said issue on his part, gave in evidence, that, &c. [here set out the evidence on the part of the plaintiff, and afterwards that on the part of the defendant, and then proceed as follows:] Whereupon the said counsel for the said C. D. did then and there insist before the said chief justice, on the behalf of the said C. D., that the said several matters so produced and given in evidence on the part of the said C. D. as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence, to entitle the said C.D. to a verdict, and to bar the said A.B. of his action aforesaid; and the said counsel for the said C. D. did then and there pray the said chief justice to admit and allow the said matters so produced and given in evidence for the said C. D. to be conclusive evidence in favour of the said C. D. to entitle him to a verdict in this cause, and to bar the said A. B. of his action aforesaid: but to this the counsel learned in the law of the said A. B. did then and there insist before the said chief justice, that the same were not sufficient, nor ought to be admitted or allowed, Judge's opinion to entitle the said C. D. to a verdict, or to bar the said A. B. of his action aforesaid; against admissi and the said chief justice did then and there declare and deliver his opinion to the jury bility of evi aforesaid, that the said several matters so produced and given in evidence on the part dence,

CHAP. I. SECT. I. TENDERING BILL OF EXCEPTIONS, &c.

Bill of excep tions tendered by defendant's counsel.

The like, in

trover, by as-
signees of a
bankrupt, where

no evidence was
given for the
defendant.
See Tidd's

Forms, 328.

The like, to be tacked to the

record, as to a witness's being bound to answer a question tending to disgrace him in

K. B. (p)

It was recently observed by one of the most distinguished lawyers of the present day, that a bill of exceptions is not only a more expeditious, but a less expensive mode of carrying a question to the House of Lords, than by a special verdict, as by the former the cause is taken directly to the Exchequer Chamber, without the delay and expense of an intermediate argument in the Inferior Court, which is the necessary consequence of a special verdict. (o)

of the said C. D., were not sufficient to bar the said A. B. of his action aforesaid, and
with that direction left the same to the said jury; and the jury aforesaid then and
there gave their verdict for the said A. B. and £- damages. Whereupon the said
counsel for the said C.D. did then and there, on the behalf of the said C. D., except to
the aforesaid opinion of the said chief justice, and insisted on the said several matters,
as constituting an absolute bar to the said action: And inasmuch as the said several
matters so produced and given in evidence on the part of the said C. D. and by his
counsel aforesaid objected and insisted on as a bar to the action aforesaid, do not ap-
pear by the record of the verdict aforesaid, the said counsel for the said C. D. did then
and there propose their aforesaid exception to the opinion of the said chief justice,
and requested him to put his seal to this bill of exceptions, containing the said several
matters so produced and given in evidence on the part of the said C. D. as aforesaid,
according to the form of the statute in such case made and provided: And thereupon
the said chief justice, at the request of the said counsel for the said C. D., did put his
seal to this bill of exceptions, pursuant to the aforesaid statute in such case made
and provided, on the said day of
in the
year of the reign of his
present majesty.

-

As in the last, mulatis mutandis, to the end of the statement of the plaintiff's evidence, and then as follows:] Whereupon the said counsel for the said A. B., assignee as aforesaid, did then and there insist before the said chief justice, on behalf of the said A. B. assignee as aforesaid, that the said several matters so produced and given in evidence on the part of the said A. B., assignee as aforesaid, were sufficient, and ought to be admitted and allowed as sufficient evidence, unless the same should be explained or answered by evidence on behalf of the said C. D. to entitle the said A. B., assignee as aforesaid, to a verdict; and prayed the said chief justice to direct the jury to that effect: But the counsel learned in the law of the said C. D. did not offer any evidence on his behalf; but did then and there insist, before the said chief justice, that the said several matters did not require any explanation or answer by evidence, and were not sufficient, nor ought to be admitted or allowed to entitle the said A. B., assignee as aforesaid, to a verdict; and that upon the evidence so given by the said A. B., assignee as aforesaid, the said C. D. was entitled to a verdict; and prayed the said chief justice so to direct the jury: but the said chief justice did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters so produced and given in evidence on the part of the said A. B. assignee as aforesaid, were sufficient, and ought to be admitted and allowed to entitle the said A. B., assignee as aforesaid, to a verdict; and that the said C. D. was not entitled to the property transferred and delivered to him; and that the delivery and transfer of the property to the said C. D. was fraudulent and void, as against the creditors of the said E. F. [the bankrupt,] if the jury should be of opinion that it was made when the said E. F. was insolvent, and must have contemplated that he should become bankrupt; and, with that direction, the said chief justice left the same to the jury; and the jury aforesaid then and there gave their verdict for the said A. B., assignee as aforesaid, for £damages: Whereupon the said counsel for the said C. D. did then and there except to the aforesaid opinion of the said chief justice, &c. [as in last.]

After the end of the issue, and award of venire facias, proceed as follows:] Which said issue, in form aforesaid joined between the said parties, afterwards, to wit, at the sittings of nisi prius, holden at Westminster Hall in and for the county of Middlesex, on- the day of - -, in the year of the reign of our lord the now king, before the Right Honourable Charles Lord Tenterden, chief justice of our said lord

He

(0) Observations of Scarlett, K. C., in Solarte v. Palmer, 30th June, 1834. therefore frequently recommended the tendering of a bill of exceptions, as pre

ferable to a special verdict.

(p) That a witness is bound to answer, ante, vol. iii. p. 900.

CHAP. I. SECT. I. TENDERING

CEPTIONS, &c.

In Bulkeley v. Butler, (p) Best, J. observed, "The respec"tive offices of bills of exceptions and demurrers to evidence "have not been very distinctly understood, as appears by the BILL OF EX"judgment of Eyre, C. J. in Gibson v. Hunter. (q) It appears "to me now, that this objection is open on a bill of exceptions, "but that the party making it should not be placed in a better "situation than if he had demurred to the evidence. Bills of exception were not known to the common law, but were "introduced by the 13 Ed. 1, c. 31. Until that time, if "the judge decided wrongly upon any point of law, the suitor "was entirely without remedy. The statute was made to re"lieve parties from that hardship; it should therefore receive "a liberal exposition; for which reason, although it appears "to have been applicable originally to decisions upon plead"ings only, (which at that time were carried on ore tenus,) yet "I think it may fairly be extended to such a case as the pre"sent, viz. a question upon the sufficiency of the proof that a "bill of exchange had been indorsed by the identical intended "payee. Lord Coke says, (r) it extends to cases where any

the king, assigned to hold pleas in the Court of our said lord the king, before the king himself, John Henry Abbott, Esquire, being associated unto the said chief justice, according to the form of the statute in such case made and provided, came on to be tried by a jury of the said county of Middlesex, for that purpose duly impanelled: At which day came there as well the said A. B. as the said C. D., by their respective attornies aforesaid; and the jurors of the jury aforesaid, impanelled to try the said issue, being called, also came, and were then and there in due manner chosen and sworn to try the same issue: And upon the trial of that issue, one E. F. was produced and examined upon oath as a witness by the counsel learned in the law for the said A. B. in support of the said action; and upon the cross-examination of the said E. F, by the counsel learned in the law for the said C. D., the said E. F. was asked by the said last-mentioned counsel, whether he had not been imprisoned upon a conviction for forging a coal meter's ticket: Whereupon the said chief justice then and there interposed, and before the said E. F. had given any answer to the said question, declared and delivered his opinion, that the said E. F. was not bound to answer the said question; and the said E. F. thereupon then and there refused to answer the same : And afterwards, at the said trial, the said chief justice, in summing up the evidence given in the said cause to the jury aforesaid, did further declare and deliver his opinion to the said jury, that the said E. F.'s refusal to answer the said question threw no manner of discredit upon him the said E. F.; and the jury aforesaid thereupon then and there gave their verdict for the said A. B. and £ damages: Whereupon the said counsel for the said C. D. did then and there, on behalf of the said C. D., except to the aforesaid opinion of the said chief justice, and insisted that the said E. F. was bound to answer the said question, and that his refusal to answer the same was, and ought to be considered by the said jury as an impeachment of his credit: And inasmuch as the said several matters herein before mentioned do not appear by record, &c. [as in the last.]

(p) 2 Bar. & Cres. 445; 3 Dowl. & R. 693, S. C.; and see Pownall v. Mascall, 2 Knap. Rep. 179, as to when the objection should be taken by demurrer to the evidence, or by bill of exceptions.

(q) 2 Hen. Bla. 187; and see observations of vice-chancellor in Pownall v. Mascall, 2 Knapp R. 179; and see Miller v. Warre, i Car. & P. 240, note (c).

One difference between the two proceedings is, that if a bill of exceptions be tendered to a judge in the course of the trial at nisi prius, the facts still go to the jury; but a demurrer to evidence stops the cause. Miller v. Warre, 1 Car. & P. 237, 240, note; 7 Dowl. & Ryl. 1; 4 Bar. & Cres. 538.

(r) 2 Inst. 427.

CHAP. I. SECT. I. TENDERING BILL OF EX.

CEPTIONS, &C.

66

“material evidence given to any jury is by the Court (s) over"ruled. I think we ought to go further, and say, that where "there is not evidence to prove the issue to be tried, and the judge tells the jury there is, that is ground for tendering a bill "of exceptions. But it may be asked what then is the office of " a demurrer to evidence? It is this: if the party tender a bill "of exceptions, the evidence must be left to the jury; but if the "party does not wish that, he may withdraw it from their con"sideration by a demurrer. If, however, he does not demur, he "must not be placed in a better situation than if he did. Now "by a demurrer to evidence, all the facts of which there is "any evidence are admitted, and all conclusions which can "fairly and logically be deduced from those facts."(t) In Pownall v. Mascall, (u) the Lord Chancellor observed, "With respect to the question as to a demurrer to the evidence, or bill of exceptions, that is, whether the want of sufficient evidence to support the verdict ought to be made the ground of a demurrer to the evidence or bill of exceptions, it is a point of some nicety even here, upon which the Courts have not acted a great deal; much more, therefore, is it a ground (the distinction being very technical, and rather subtle,) upon which, looking as we do rather to substance than form, in order to do substantial justice, we should not be willing to found our judgment, but we shall direct them to do that which is sufficiently safe in point of form, and secure in point of substance; that is to say, if the Court of error shall not deem the evidence sufficient to support the verdict, they should direct a venire de novo. I should say it was quite clear that there ought to be a judgment for the defendant below, unless there is a venire de novo." In practice, bills of exceptions are now unusual, because, if in the consideration of the judge there is any weight in the objection taken at nisi prius, he usually affords every facility for due consideration, by reserving it for the determination of the whole Court; and if not, still the party objecting may move for a new trial. But where the judge or the counsel apprehend that the point is fit to be considered by a Court of error, it is still not unusual to raise the discussion by tendering a bill of exceptions.(v)

Blackstone observes, (w) that " all evidence is to be given in