392.) But though the judgment is informal and defective, if it be one on which an execution could issue, the party aggrieved by it is entitled to his writ of error. (Wilson v. Daniel, 3 Dall. 401, 404.) In Pennsylvania, a writ of error will lie on an order arresting judgment. (Skinner v. Robeson, 4 Yeates, 375. Benjamin v. Armstrong, supra.) In New-York, however, where judgment has been arrested, the course of practice is for the party to move for judgment against himself, in order to bring error; for a writ of error, it is there held, will not lie upon an order arresting judgment. (Id. Bayard v. Malcom, 2 John. Rep. 101. Fish v. Weatherwax, 2 John. Cas. 215.) Further, as to where error lies, see the next note.

NOTE 545-p. 313.

A bill of exceptions may be said to lie, generally, to any erroneous decision or opinion of the judge upon the trial, by which either party is prejudiced; as if he reject evidence tending in any degree to aid the jury in determining a material fact; or admit improper evidence; or refuse to nonsuit the plaintiff; or to notice material testimony; or to charge upon a question of law, where his attention is distinctly called to it. (Coleman v. Allen, 3 J. J. Marsh. 229. Graham v. Camman, 2 Cain. Rep. 168. Van Gordon v. Jackson, 5 John. Rep. 467. Jackson v. Caldwell, 1 Cowen's Rep. 622, 639. Ex parte Bailey, 2 id. 479. Murray v. Judah, 6 id. 484. Dunlop v. Patterson, 5 id. 243. Dunlop v. McAllister, 3 Cranch, 298. Smith v. Carrington, 4 id. 62. Rudd v. Thomas, 1 J. J. Marsh. 209, 300. State v. Catlin, 3 Verm. Rep. 530. Hanks v. Roberts, 3 J. J. Marsh. 298.) And if the judge comment upon a piece of testimony to the jury, and leave it generally for them to pass upon, without adding such views as to its credibility as the law requires the jury to consider, a bill of exceptions will lie to the charge. (Dunlop v. Patterson, 5 Cowen's Rep. 243.) Thus, where the material fact in the cause depended for its proof upon the testimony of F., a single unsupported witness, who swore to that fact, but upon whose cross-examination, it was quite plain that he had perjured himself, either in the cause pending, or in a former cause relating to the same matter; and the court charged the jury that he was competent; that they might give his testimony such weight as they thought it deserved; and that it was in some measure supported by the testimony of R., (a witness who had agreed with F. in a collateral, immaterial fact,) and therefore entitled to that additional weight; held, that the judge should have instructed the jury to disregard F.'s testimony, and that an exception to his charge for such omission was well taken. (ld.)

An exception, however, does not lie to the charge of the judge, in ordinary cases, upon mere matters of fact; nor to his commentaries upon the weight of evidence, Observations of that nature are understood to be addressed to the jury, merely for their consideration, as the ultimate judges of matters of fact; and are entitled to no more weight or importance than the jury in the exercise of a sound judgment choose to give them, They neither are, nor are they understood to be, binding upon them as the true and conclusive exposition of the evidence. And the only remedy for a party ag grieved by an erroneous opinion upon the facts, is by motion for a new trial; (Carver v. Jackson d. Astor, 4 Peters, 1, 80, 81; Magniac v. Thompson, 7 id. 348, 390; Burd v. Dansdale, 2 Binn. Rep. 80, 89; Graham v. Graham, 1 Serg. & Rawle, 330 ;

Hamilton v. Menor, 2 id. 70; Renn v. The Contributors to the Pennsylvania Hospital, id. 413; Poorman v. Smith's ex'rs, id. 464; Henwood v. Cheeseman, 3 id. 500 ;) or in a criminal case, by appeal to the pardoning power. (The People v. Vane, 12 Wend. 78.) But where there was evidence from which a jury would have been authorized to presume enough to sustain the plaintiff's action, and the judge charged peremptorily that the plaintiff had failed in sustaining his action, this was held a deviation not from fact, but law, and that therefore error would lie for it. (Long v. Ramsay, 1 Serg. & Rawle, 72.) A bill of exceptions does not lie because the court refuse to give an opinion upon the facts. (Hamilton v. Menor, 2 Serg. & Rawle, 70. Brown v. Campbell, 1 id. 176.) It is otherwise, however, if they refuse to give an opinion upon a point of law, material to the issue, where their attention is specifically called to it; (Brown v. Campbell, 1 Serg. & Rawle, 176; Hamilton v. Menor, 2 id. 70; Poorman v. Smith's ex'rs, id. 464; Dunlop v. Patterson, 5 Cowen's Rep. 243; State v. Catlin, 3 Verm. Rep. 530, 534; Shaeffer v. Landis, 1 Serg. & Rawle, 449; Vincent v. Lessee of Huff, 4 id. 298;) and it is equally erroneous, if they give their opinion in an equivocal or evasive manner; for the party is entitled to distinct and explicit instructions, upon every point of law propounded to the court. (Smith v. Thompson, 2 id. 49. Powers v. M'Ferran, id. 44.) But a refusal of instructions prayed for, on a mere abstract proposition, not bottomed on any color of evidence, will be no ground of exception. (Greathouse v. Brown, 5 Monroe, 280, 282. Hamilton v. Russell, 1 Cranch, 309, 318.) So a charge or opinion of a judge which is entirely abstract, or out of the case so as not to affect it, though erroneous, cannot be insisted on by exception. If, however, it may have operated injuriously to the legal rights of the party excepting, it is otherwise, and a new trial will be granted. (Clarke v. Dutcher, 9 Cowen's Rep. 674. See also Smith v. Carrington, 4 Cranch, 62; King v. Kinny, 4 Hamm. 81; Wardell v. Hughes, 3 Wend. 418; Proffit v. Williams, 1 Yerg. 89; Norton v. Sanders, 1 Dana's Rep. 14, 15.) Where the exception was for the admission of improper testimony, and it appeared clearly that the party excepting could not have been injured by it, the proof being merely superogatory and such as the defendant in error was in no wise bound to make; held that error could not be sustained. (Reynolds v. Ex'rs of Rogers, 5 Hamm. Rep. 169, 171.) So also in M'Dougal v. Fleming, (4 id. 389,) the general principle is distinctly recognized, that the party taking a bill of exceptions must show that he might have been prejudiced by the decision excepted to, or the proceedings below will not be disturbed. (See King v. Kinny, 4 id. 81.) But where the sole question on a bill of exceptions turned on the competency of a witness produced to testify to a fact fully proved by other witnesses; held, that the court, in considering the bill, could not reject the evidence of such witness as unnecessary, for it was impossible to say that the jury disregarded it; and the witness being adjudged incompetent, the judgment in the court below was accordingly reversed. (Marquand v. Webb, 16 Johns. Rep. 89. See S. P. Osgood v. The President and Directors of the Manhattan Co., 3 Cowen's Rep. 612, 621; Anthoine v. Coit, 2 Hall's Rep. N. Y. C. P. 40, 48, 9, 50.) Decisions have been made which present a different aspect-and where, though improper evidence was clearly admitted, the court have refused to interfere, because there appeared to be enough, exclusive of such improper evidence, to sustain the verdict of the jury. (See Supervisors of Chenango v. Birdsall, 4 Wend. 458; Crary v. Sprague, 12 id. 44; Horford v. Wilson, 1 Taunt. 12; Doe v. Teyn

ham, 6 Bing. 561.) These however will be found, on examination, to be instances where the question arose upon a case presenting all the facts, or where the peculiar office of a bill of exceptions was inadvertently overlooked. (See Soulden v. Van Ransselaer, 9 Wend. 293, 296.)

Where a judge has improperly refused to nonsuit a plaintiff because of a defect in the evidence on his side, the error is cured by the proof being subsequently given. (Murray v. Judah, 6 Cowen's Rep. 484, 490.)

A bill of exceptions does not lie to the decision of a court, upon matter entirely within their discretion; as the refusal to grant a new trial. (Law v. Merrills, 6 Wend. 268, 278. Henderson v. Moore, 5 Cranch, 11. The Marine Ins. Co. of Alexandria v. Young, id. 187. Barr v. Gratz, 4 Wheat. 213, 220. Blunt's lessee v. Smith, 7 id. 248. Granger v. Bissell, 2 Day's Rep. 364, 368. Lewis v. Hawley, 1 Conn. Rep. 49. Magill v. Lyman, 6 id. 59. Wight v. Small's lessee, 2 Binn. Rep. 93. Burke v. Young's lessee, 2 Serg. & Rawle, 383. Bloss v. Kittridge, 5 Verm. Rep. 28. Littleton v. Moses, Breese's Rep. app. 9.) But in Virginia, where the evidence was all consistent and detailed in the bill, and it clearly appeared that, excluding the evidence of the plaintiff in error entirely, and admitting the facts proved by the defendant in error, the verdict was contrary to evidence and justice, a bill of exceptions to the opinion of the court below refusing a new trial was sustained. (Ewing v. Ewing, 2 Leigh's Rep. 337.) It would have been otherwise, however, had there been room for reasonable doubt. (Jackson's adm'x v. Henderson, 3 id. 196. Bennett v. Hardaway, 6 Munf. 125. Carrington v. Bennett, 1 Leigh's Rep. 340.) The rule on this subject in Indiana is similar to that which prevails in Virginia. (Lurton v. Carson, 2 Blackf. 464.) A bill does not lie for granting or refusing an amendment, in a case in which the court exercises a discretion. (Ordoneaux v. Prady, 6 Serg. & Rawle, 510. Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 217.) Nor for granting or denying a motion to postpone the trial of a cause. (Woods v. Young, 4 Cranch, 237.) In Kentucky however it is otherwise, and the refusal to postpone in a proper case is error. (M'Carty v. Patton's ex'rs, 3 J. J. Marsh. 263. Simms v. Alcorn, 1 Bibb, 248.) So it seems in Tennessee. (Cornell v. The State, Mart. & Yerg. 147.) Whether a bill of exceptions lies to the refusal of a court to compel a party to join in a demurrer to evidence, quere. (Young v. Black, 7 Cranch, 565. See post, p. 215 of the text, and note 549.) Quere also whether, in Pennsylvania, error lies for a clear abuse of discretion. (Duncan v. M'Cullough, 4 Serg. & Rawle, 482.) A bill of exceptions does not lie to the decision of a court, in admitting or rejecting evidence upon a motion for summary relief. (Shortz v. Quigley, 1 Binn. Rep. 222.) It seems that in Vermont it lies for the court's refusing to receive a plea puis darrien continuance, or improperly taxing fees for travel and attendance of witnesses. (Higgins v. Hayward, 5 Verm. Rep. 73.) And in Tennessee, for the circuit court's refusing to allow a certiorari, to bring up proceedings of the county court. (Lawson v. Scott, 1 Yerg. 92. Bob v. The State, 2 id. 173.) But not for refusing to permit an attorney to appear, on the ground of a want of authority. (Ex parte Gillespie, 3 id. 325.) Nor for improperly granting an order discharging an insolvent. (Donnelly v. Whitney, 4 id. 475.) See the next preceding note.

As to the time and manner of excepting. The practice in New-York, in this respect, is regulated by statute. It must be done when the decision complained of is made, save in the single instance where the exception is to the charge of the court to

the jury, in which case the exception is in time, if tendered before the jury have delivered their verdict. (2 R. S. 422, § 73.) A subsequent section requires the exception to be in writing, but authorizes the court to allow such time as shall be deemed reasonable, to settle and reduce the same to form. (ld. § 74.) And in pursuance of this authority, the supreme court, by general rule, have declared that the party shall not be required to prepare his bill of exceptions at the trial, but merely to reduce the exceptions to writing, and afterwards to draw up the bill and have the same settled, in like manner and under the same regulations as are made with respect to cases; i. e. the party must draw up his bill, and serve a copy thereof on the opposite party within four days after the trial, who may, within four days thereafter, prepare amendments thereto, and serve a copy on the party taking the exception, who may then, within four days therefter, serve the opposite party with a notice to appear, within a convenient time, (to be specified in the notice, and not less than four nor more than twenty days after service of such notice,) before the judge who tried the cause, and have the bill and amendments settled. The judge shall thereupon correct and settle the bill as he shall deem to consist with the truth of the facts. (See Rules of S. C. Oct. 1829, Nos. 38, 34.) The time for preparing a bill of exceptions and amendments thereto, may be enlarged by the judge who tried the cause, or one of the justices of the supreme court, but not by any other officer. (Id. No. 39.)

The rules of the district court of the U. S., for the northern district of New-York, are substantially the same as those adopted by the supreme court of New-York. (See Conklin's Pr. app. 480, 479.)

Independent however of any statutory provision on the subject, the nature and reason of the thing dictates that an exception to the charge of the court is in time, if made before the jury have pronounced their verdict; and also that exceptions as to evidence should be made as soon as the court have decided; not that in either instance they need be drawn up in form immediately, but the substance should be reduced to writing by the court or the party, while the matter is transacting. This doctrine is contained in a variety of cases among which are the following: Morris v. Bulkley, 8 Serg. & Rawle, 211, 214; Jones v. The Ins. Co. of North America, 4 Dall. 249; 1 Binn. 38, S. C.; Lanuse v. Barker, 10 John. Rep. 312, 322; Sikes v. Ransom, 6 id. 279; Pratt v. Malcolm, 13 id. 320; Midberry v. Collins, 9 id. 345; Law v. Merrills, 6 Wend. 268; Stewart v. The Huntingdon Bank, 11 Serg. & Rawle, 267; Walton v. The United States, 9 Wheat. 651, 657; Ex parte Bradstreet, 4 Peters, 102, 107; Gordon v. Ryan, 1 J. J. Marsh. 54, 58; Doe, dem. Woods, v. Kennedy, 5 Monroe, 177, 8. Cline v. Caldwell, 4 Miller's Rep. 19; Coxe v. Field, 1 Green's Rep. 216; Force v. Smith, 1 Dana's Rep. 151. The propriety of requiring exceptions as to evidence, to be made at the time of the decision complained of, is obvious. The adverse party has it then at his option of waiving the evidence admitted, or admitting the evidence rejected, rather than have his cause involved in the hazard, delay, and expense of a writ of error; and where he exercises this right, by thus conceding to the views of the party excepting, error cannot be alleged. (Legget v. The Bank of Pennsylvania, 7 Serg. & Rawle, 218. Lanuse v. Barker, 10 John. Rep. 312. Givens v. Bradley, 3 Bibb's Rep. 192. Marquand v. Webb, 16 John. Rep. 89. Thomas v. Tanner, 6 Monroe, 52. Doe, dem. Woods, v. Kennedy, 5 Monroe, 177, 8.)

The party excepting must not only be careful that his exception be interposed at the proper time, but he should see that it be so specific as to point to the precise error intend to be relied on; for the court, in their decision upon questions arising at the trial, are not bound to do more than respond to the motion or objection made. They are under no obligation to modify the propositions of counsel, so as to make them suit the case, but may dispose of them in the terms in which they are propounded. Accordingly, where the defendant had reserved the right of moving for the exclusion of any part of the plaintiff's evidence which he might choose to designate as incompetent, and it did not appear from the bill that he designated any particular part, but moved for the exclusion of the whole; held, that though part of the testimony was incompetent, the court were right in refusing the motion, unless the whole were so. (Elliot v. Piersol's lessee, 1 Peter's 328.) So where the objection was general, that the plaintiff was not entitled to interest, and it appeared that he was entitled to interest on a part of the account, though not on the whole; held that the objection was properly overruled. (Reab v. M'Allister, 8 Wend. 109, 111.) And where an exception was taken because of the admission of certain depositions, on the ground that they were not legally taken, the supreme court of Louisiana held that this was too general to allow the party to avail himself of a defect in respect to the official seal of the officer by whom they were taken. (Ohio Ins. Co. v. Edmondson, 5 Miller's Rep. 295. See Mandeville v. Perry, 6 Call's Rep. 78, S. P.) So if there is any thing ambiguous in the charge of the court, calculated to mislead the jury, their attention should be specifically called to it at the time, or it cannot be alleged as error. (Id. Ball v. Mannin, 3 Bligh's Rep. N. S. 22. Taylor v. Willans, 2 Barn. & Adol. 195. Carver v. Jackson, ex dem. Astor, 4 Peters, 1, 81.)

The form of the bill, its contents, &c. If the bill be not tacked to the record, it should set out the whole proceedings previous to the trial; but otherwise it begins with the proceedings after issue joined, and in either case it goes on to state the circumstances upon which it is founded; as, that a witness was called to establish certain facts, or evidence offered, or challenge made, or demurrer tendered; the allegations of counsel respecting the competency of the witness, the admissibility of the evidence, or legal effect of it, &c.; the opinion of the court or judge, the exception of counsel to the opinion and the verdict of the jury. (Bull. N. P. 317, 319. Tidd's Pr. 788. 2 Dunlap's Pr. 643. Swift's Ev. 168.)

For precedents of bills of exceptions, see Bull. N. P. 317, 319; Brownl. Ent. 131; Tidd's Pr. Forms, 161. Tidd's Appendix, 206; Tillinghast's Forms, 182, 3, 4, 5, 6, 7. The bill is not designed to draw the whole matter again into examination, but only the points to which it is taken; the party excepting must therefore lay his finger on those points which arise, either in admitting or denying evidence, or matter of law arising from a fact not denied, in which either party is everruled by the court. (Jackson, ex dem. Webb, v. Robert's ex'rs, 11 Wend. 422, 430. Van Gorden v. Jackson, 5 John. Rep. 467. Graham v. Camman, 2 Caines' Rep. 168. Frier v. Jackson, 8 John. Rep. 495. Jackson, ex dem. Saunders, v. Caldwell, 1 Cowen's Rep. 622. M'Donald v. Fisher, Kirby, 339. Soulden v. Van Rensselaer, 9 Wend. 293, 296. Law v. Merrills, 6 Wend. 268, 274. Swift's Ev. 158. Lovell v. Field, 5 Verm. Rep. 218. Hazletine v. Page, 4 id. 49. Coxe v. Field, 1 Green's Rep. 215.) And no more of the case should be incorporated in the bill, than is necessary to raise the questions de