EXCEPTION (Lat. emipere: em, out of, capere, to take). A clause in a deed by which the lessor excepts something out of that which he before granted by the deed.
The exclusion of something from the ef fect or operation of the deed or contract which would otherwise be included.
An exception differs from a reservation (q. e.),— the former being always of part of the thing grant ed, the latter of a thing not in esse, but newly cre ated or reserved ; the exception is of the whole of the part excepted ; the reservation may be of a right el' interest in the particular part affected by the reservation. See Ballou v. Harris, 5 R. I. 419 ; Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 219; State v. Wilson, 42 Me. 9 ; Adams v. Morse, 51 Me. 498 ; , Gould V. Wass, 19 Barb. (N. Y.) 192 ; 2 B. & C. 197. The two words, however, are often used indiscriminately ; Stockwell v. Couillarff, 119 Mass. 231; Barnes v. Burt, 38 Conn. 541. An exception differs, also, from an explanation, which, by the use of a videlicet, proviso, etc., is allowed only to ex pla;in doubtful clauses precedent, or to separate and distribute generals into particulars ; Cutler v. Tufts, 3 Pick. (Mass.) 272. See RESERVATION. • To make a valid exception, these things must concur : first, the exception must be by apt words, as, "saving and excepting," etc.; see Keeler v. Wood, 30 Vt. 242 ; Ballou v. Harris, 5 R. I. 419 ; Hammond v: Wood man, 41 Me. 177, 66 Am. Dec. 219 ; Midgett v. Wharton, 102 N. C. 14, 8 SI E. 778; second, it must be of part of the thing previously described, and not of some thing ; third, it must be of part of the thing only, and not .of all, the greater part, or the ef fect of the thing granted ; Richardson v. Mil burn, 11 Md. 339; Adams v. Warner, 23 Vt. 395; an exception, therefore, in a lease which extends to the •whole thing demised is void ; fourth, it must be of such thing as is severa ble from the demised premises, and not of an inseparable incident ; Backenstoss v. Stahler's Adm'rs, 33 Pa. 251, 75 Am. Dec. 592; Good rich v. R. R., 37 N. H. '167; fifth, it must be of such a thing as he that excepts may have, and which properly belongs to him; siwth, it must be of a particular thing out of a gen eral, and not of a particular thing out of a particular thing ; seventh, it must be particu larly described and set forth ; a lease of a tract of land except one acre would be void, because that acre was not particularly de seribed ; Co. Litt. 47 a; Hay v. Storrs, Wright
(Ohio) 711; Jackson v. Hudson, 3 Johns. (N. Y.) 375, 3 Am. Dec. 500 ; Darling v. Crowell, 6 N. H. 421; Altman v. McBride, 4 Strobh. (S. C.) 208; see Painter v. Water Co., 91 Cal. 74, 27 Pac. Exceptions against common right and general rules are construed as Strictly as possible ; Hays v. Askew, 50 N. C. 63. When a grantor makes a valid• exception, the thing excepted remains the property of himself or his heirs; but if he • has no valid title to it, neither he not his heirs can recover ; Fisher v. Min. Co., 97 N. C. 95, 4 S. E. 772.
In Equity Practice. The allegation of a paity, in writing, that some pleading or pro ceeding in a cause is insufficient.
In Civil Law. A plea. Merlin, Revert.
Declinatory exceptions are such exceptions as merely decline the jurisdiction of the judge before whom the action is brought. La. Code Proc.
Dilatory emotions are such as do not tend to defeat the action, but only to retard its progress.
DeClinatoiy exceptions hate this effect, as well as the exception of discussion offered by a third possessor or by a surety in an hypothechry action, or the exception taken in order to call In the war rantor. Noble v. Martin, 7' Mart. N. S. (La.) 282; Howard v. The Columbia, 1 La. 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 be pleaded in limine Luis. ,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, either because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to definitive judgment ; Pothier. Proc. Chi. pt. 1, c. 2, se. 1, 2, 3. These,• In the French law, are called Fins de non recevoir.
In Practice. Objections made to the deci sions of the court in the course of a trial. See BILL OF EXCEPTION.