BILL OF EXCEPTIONS. A written state ment of objections to the decision of a court upon a point of law, made by a party to the cause, and properly certified by the judge or court who made the decision.
The object of a bill of exceptions is to put the de cision objected to upon record for the information of the court having cognizance of the cause in er ror. They were authorized by statute Westm. 2d (13 Edw. I.), c. 31, the principles of which hays been adapted in all the states, though the statute has beefn held to be superseded in some, by their own ' statutes. It provides for compelling the judges to sign such biiis, and for securing the insertion of the exceptions upon the record. They may bet brought by either plaintiff o• defendant. Abolished, in Eng land by the Judicature Act, 1873.
"The statute gives a bill of exceptions only in a trial according to the course of the com mon law ; and there is no other means of putting evidence on a record;" Union Canal Co. v. Keiser, 19 Pa. 137, per Gibson, J.
In what cases. In the trial of civil causes, wherever the court, in making a decision, is supposed by the counsel against whom the decision is made to have mistaken the law, such counsel may tender exceptions to the ruling, and require the judge to authenti cate the bill; 3 Bla. Cora. 372; Sowerwein v. Jones, 7 Gill & J. (Md.) 335 ; Ray v. Lips comb, 48 N. C. 185 ; including the receiving improper, and the rejecting proper, evidence ; Samuel v. Withers, 9 Mo. 166; Com. v. Bos worth, 6 Gray (Mass.) 479 ; King v. Gray, 17 Tex. 62; and a failure to call the atten tion of the jury to material matter of evi dence, after request ; Ex parte Baily, 2 Cow. (N. Y.) 479; and including a refusal to charge the jury in a case proper for a charge ; Fletcher v. Howard, 2 Aik. (Vt.) 115, 16 Am. Dec. 086; Emerson v. Hogg, 2 Blatchf. 1, Fed. Cas. No. 4,440 ; Com. v. Pack ard, 5 Gray (Mass.) 101; but not including a failure to charge the jury on points of law when not requested ; Texas & P. R. Co. v.
Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78 ; Law v. Merrills, 6 Wend. (N. Y.) 274 ; Brigham v. Wentworth, 11 Cush. (Mass.) 123; Rogers v. R. Co., 38 Me. 227; and in cluding a refusal to order a special verdict in some cases; Syme v. Butler, 1 Call (Va.) 105. It can be taken to the action or want of proper action of the trial court, upon any proceeding in the progress of the trial from the commencement of the same to its conclu sion and when properly presented can be considered by the court on writ of error ; Wilson v. United States, 149 U. S. 67, 13 Sup. Ct. 765, 37 L. Ed. 650.
An exception cannot be taken to the de cision of the court upon matters resting in its discretion ; Cummings v. Fullam, 13 Vt. 459; Law v. Merrills, 6 Wend. (N. Y.) 277; Deloach v. Walker, 7 How. (Miss.) 164; Mos seaux v. Brigham, 19 Vt. 457; nor upon any theory announced by the court, unless such be expressed in particular language; Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631; nor for the refusal of a non-suit; Ballentine v. White, 77 Pa. 20; nor where the record shows a fatal error, as want of jurisdiction; Fields v. Maloney, 78 Mo. 172; nor, generally, in cases where there is a right of appeal; Wheelock v. Moulton, 13 Vt. 430; though the practice in some states is otherwise.
Jn criminal cases, at common law, judges are not required to authenticate exceptions; 1 Chitty, C. L. 622; People v. Holbrook, 13 Johns. (N. Y.) 90; Wynhamer v. People, 20 Barb. (N. Y.) 567; Case v. Com., 1 Va. Cas. 264; Middleton T. Cern., 2 Watts (Pa.) 285; U. S. v. Gibert, 2 Surma. 19, Fed. Cas. No. 15,204 ; but statutory provisions have been made in several states authorizing the taking of exceptions in criminal cases; Com. v. Jones, 1 Leigh (Va.) 598; Wynhamer v. People, 20 Barb. (N. Y.) 567; Osburn v. State, 7 Ohio, 214, pt. 1; Donnelly v. State, 26 N. J. L. 463 ; Shannon v. People, 5 Mich. 36 ; Fife v. Com., 29 Pa. 429.