EXCEPTION (Lat. excipere : ex, out of, capere, to take).
In Contracts. A clause in a deed by which the lessor excepts something out of that which be granted before by the deed.
The exclusion of something from the effect or operation of the deed or contract which would otherwise be included.
An exception differs from a reeervation,—the former being always of part of the thing granted, the latter of a thing not in eerie, but newly created or reserved ; the exception is of the whole of the part excepted ; the reservation may be of a right or interest in the particular part affected by the reservation. See 5 R. I. 419; 41 Me. 177; 42 id. 9. An exception differs, also, from an explanation, which, by the use of a videlicet, proviso, etc., is al lowed only to explain doubtful clauses precedent, or to separate : nd distribute generals into particu lars. 3 Pick. Lass. 272.
To make a valid exception, these things must concur : first, the exception must be by apt words, as, " saving and excepting," etc., see 30 Vt. 242 ; 5 R. I. 419 ; 41 Me. 177 ; second, it must be of part of the thing previ ously described, and not of some other thing; third, it must be of part of the thing only, and not of all, the greater part, or the effect of the thing granted, 11 Md. 339 ; 23 Vt. 395 ; 10 Mo. 426 ; an exception, therefore, in a lease which extends to the whole thing demised is void ; fourth, it must be of such thing as is severable from the demised premises, and not of an inseparable incident, 33 Penn. St. 251; fifth, it must be of such a thing as be that excepts may have, and which properly be longs to him ; sixth, it must be of a particular thing out of a general, and not of a particular thing out of a particular thing ; seventh, it must be particularly described and set forth; a lease of a tract of land except one acre would be void, because that acre was not particularly described. Woodfall, Landl. &
Ten. 10; Coke, Litt. 47 a; 12 Me. 337; Wright, Ohio, 711 ; 3 Johns. N. Y. 375 ; 5 N. Y. 33; 8 Conn. 369 ; 6 Pick. Mass. 499 ; 6 N.
421 ; 4 Strobh. So. C. 208; 2 Tayl. No. C. 173. Exceptions against common right and general rules are construed as strictly as pos sible. 1 Barton, Cony. 68; 5 Jones, No. C. 63.
In Equity Practice. The allegation of a party, in writing, that some pleading or pro ceeding in a cause is insufficient.
In Civil Law. A plea. Merlin, Repert.
Declinatory exceptions are such dilatory ex ceptions as merely decline the jurisdiction of the judge before whom the action is brought. La. Code Proc. 334.
Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress.
Declinatory exceptions have this effect, as well as the exception of discussion offered by a third possessor or by a surety in an hypothecary action, or the exception taken in order to call in the war rantor. 7 Mart. La. N. s. 282; 1 La. 38, 420.
Peremptory exceptions are those which tend to the dismissal of the action.
Some relate to forms, others arise from the law. Those which relate to forms tend to have the cause dismissed, owing to some nullities in the proceed ings. These must he pleaded in limine litie. Per emptory exceptions founded on law are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, oither because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to de finitive judgment. Id. art. 343, 346; Pothier, Proc. Civ. pt. 1, c. 2, ss. 1, 2, 3. These, in the French law, are called Fair de non recevoir.
In Practice. Objections made to the de cisions of the court in the course of a trial. See BILL OF EXCEPTION.