What may be Reviewed by Exceptions. variance, and the refusal of the judge at the circuit to allow a material allegation to be inserted, by way of amendment, is not ground of exception. Supreme Ct., 1849, Roth v. Schloss, 6 Barb., 308; S. P., Hunt v. Hudson River Fire Ins. Co., 2 Duer, 481; Garner v. Hannah, 6 Id., 262. 10. Exercise of discretion. A bill of exceptions cannot be taken to review the exercise of discretionary power,-e. g., as to whether counsel shall be permitted to address the jury. If a judge, at the trial, errs in the exercise of this discretion, the remedy is by motion for a new trial on a case, and not by bill of exceptions. Ct. of Appeals, 1853, People v. Cook, 8 N. Y. (4 Seld.), 67. 11. The refusal of a judge to receive testimony after the case is closed, in the exercise of his judicial discretion, not reviewable upon a bill of exceptions. N. Y. Com. Pl., 1852, Chancel v. Barclay, 1 E. D. Smith, 384. 12. All that relates to the manner of conducting the trial, to the forms of the questions asked, if not objectionable in substance, and to the range allowed to counsel in their arguments, are matters of discretion, and as to these, a remedy for a supposed error cannot be had by an exception. Supreme Ct., 1848, People v. Finnegan, 1 Park. Cr., 147; and see People v. Stockham, 1 Id., 424. 13. Error of jury. If the jury renders a verdict against the evidence, and contrary to the judge's instructions, exceptions cannot reach the case; for exceptions lie only to the rulings of the judge, and not to the errors of the jury. The verdict must be set aside as against the evidence, or the weight of evidence, on a case made. Supreme Ct., 1855, Stanley v. Webb, 21 Barb., 148. 14. Whether a verdict is against evidence or not, is a question which cannot arise on a bill of exceptions. Supreme Ct., 1817, Foot v. Wiswall, 14 Johns., 304. 15. Sufficiency of evidence. A bill of exceptions cannot draw in question the sufficiency of evidence, unless a direction be given upon it, or a decision be made upon it, as a matter of law. Supreme Ct., 1839, People v. Rathbun, 21 Wend., 509. To the same effect is Willard v. Warren, 17 Id., 257. 17. Final judgment on motion for new trial. An exception will not lie to the final judgment of the Supreme or Superior Courts, pronounced upon a motion for a new trial in such court, made on a case, bill of exceptions, or special verdict. Ct. of Appeals, 1853, McCrackan v. Cholwell, 8 N. Y. (4 Seld.), 133. 18. In order to have a review by the Court of Appeals, of a determination of the Supreme or Superior Courts, denying a new trial after a trial by jury, there must be a bill of exceptions taken on the trial, or a special verdict, presenting questions of law only. An exception to the determination at general term, amounts to nothing. [2 Comst., 981.] Ib. 19. Criminal cases. Bills of exceptions in criminal cases were unknown at common law. The right to such bill is given only by statute. [2 Rev. Stat., 736.] Its office is to bring up for review questions of law made and decided on the trial. But the right is limited by the statute to exceptions taken on the trial of the main issue. It does not extend to exceptions taken on the trial of preliminary or collateral questions. Hence, exceptions taken by the defendant to rulings of the court below, on a motion to quash the indictment for irregularity, and on the trial of the issue joined on a challenge to the array, cannot properly be incorporated in the bill of exceptions. Supreme Ct., 1855, Wynhamer v. People,* 20 Barb., 567; S. C., 11 How. Pr., 530; S. C., 2, Park. Cr., 377, where the proceedings on the trial are more fully stated. 20. Under 2 Rev. Stat., 736, § 21, exceptions may be taken on a criminal trial, in the same manner as in civil cases. Supreme Ct., 1854, Safford v. People, 1 Park. Cr., 474. 21 A bill of exceptions lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time. Supreme Ct., 1853, People v. Stockham, 1 Park. Cr., 424. 22. Suspension of sentence. When, upon conviction for a capital offence, in a court of Oyer and Terminer, the prisoner's counsel prepares and tenders a bill of exceptions, it is the usual and proper course to grant the prisoner a suspension of sentence, to enable him to ob 16. Matters occurring after the trial cannot be reviewed by a bill of exceptions. Ct. of Errors, 1830, Law v. Merrills, 6 Wend., 268. * Reversed, but on other grounds, S. C., 18 N. Y. Supreme Ct., 1836, People v. Dalton, 15 Id., 581. | (3 Kern.), 878; S. C., 2 Park. Cr., 421. case. How Exceptions are to be Taken. tain the judgment of the full bench upon his And this will be done, although the Oyer and Terminer are of opinion there has been no error in the proceedings. Tioga O. & T., 1851, Trial of Thurston.* II. How EXCEPTIONS ARE TO BE TAKEN. 23. When. Exceptions should be reduced to writing upon the trial, or during the term, and can be settled only on notice. Supreme Ct., 1824, Shipherd v. White, 3 Cow., 32. 24. Exceptions must, in all cases, to be effectual, be taken upon the trial, and there is no such practice authorized by statute, or by -courts of common law, as excepting to the decision of a court on a question arising otherwise than upon the trial of the cause. Ot. of Appeals, 1848, Onondaga County Mutual Ins. Co. v. Minard, 2 N. Y. (2 Comst.), 98. 25. The court will presume an exception to the charge to have been taken in due time, unless it is expressly shown to have been taken after verdict. Supreme Ct., 1832, Wakeman v. Lyon, 9 Wend., 241. ceptions showed that on the trial verdict was directed for plaintiff, with leave to defendant to move that a nonsuit be entered, and to the plaintiff to except in the same manner as if the nonsuit was granted at the trial, and subsequently the court, after argument, set aside the verdict and directed a nonsuit, to which decision the plaintiffs excepted,-Held, that inasmuch as the exception was not raised at the trial, it must be disregarded. Ct. of Appeals, 1848, Onondaga County Mut. Ins. Co. v. Minard, 2 N. Y. (2 Comst.), 98. 30. Trial without jury. Sections 268 and 272 of the Code limit the time, within which exceptions to the decision of a judge or report of a referee may be served, to ten days after notice of the judgment. Leave given to make a case, with liberty to turn it into a bill of exceptions, does not extend the right to take exceptions beyond the ten days. N. Y. Com. Pl., 1856, Beach v. Gregory, 3 Abbotts' Pr., 78; S. C., sub nom. Beach v. Raymond, 1 Hilt., 201; affirming S. C., 2 Abbotts' Pr., 203. 31. On a trial by court, without a jury, or before a referee, if the unsuccessful party desires to review any question of law, he must except to the decision thereon, if such decision is made during the progress of the trial, at the time it was made; if it is made in the final decision, he must except within ten days after written notice of the judgment. Supreme Ct., 26. Request to charge. A party who is dissatisfied with the expression of an opinion by a judge upon a question of fact, or the conclusion at which he arrives in regard to it, must express that dissatisfaction; not by excepting to the charge of the judge on that point, but by asking to have the question of fact submitted to the jury for their determina- | 1856, Tremain v. Rider, 13 How. Pr., 148. tion. Supreme Ct., 1858, Dows v. Rush, 28 Barb., 157. 27. Where a party simply excepted to the charge, on the ground that the question of sufficient authority or assent should have been submitted to the jury as a question of fact; but the judge had not been requested to submit the question to the jury; nor had he refused to do so,-Held, that the exception was not equivalent to a request to the court so to submit, and a refusal to do so. Ib. 32. The practice on taking exceptions in such cases, fully stated. Ib. 33. On a trial by a referee, decisions made in the progress of the trial must be excepted to at the time; but exceptions to the conclusions of law may be taken within ten days after notice of the judgment. [Code, § 223.] Supreme Ct., Chambers, 1849, Deming v. Post, 1 Code R., 121. 34. The referee, on the trial, received the declarations of a third party, subject to be 28. A stipulation between the parties, that stricken out if no evidence should be introcounsel shall be considered as having duly ex-duced to show their adoption by the plaintiff'; cepted to the finding and decision of the judge, is not an exception. The party should except, and make his bill, as if the cause were tried by jury. Ct. of Appeals, 1852, Stephens v. Reynolds, 6 N. Y. (2 Seld.), 454. afterwards the referee struck out such decla rations, and 'so reported ;-Held, that the court could not interfere with the report, unless the defendant excepted to such provisional admission of evidence, or, at the close of the case, 29. Leave reserved. When the bill of ex- obtained a specific ruling thereon, and had his exception noted. N. Y. Superior Ct., 1856, • From a pamphlet report of this trial, in the State Brooks v. Christopher, 5 Duer, 216. Library, at Albany. 35. Where, in a cause tried before a judge, How Exceptions are to be Taken. without a jury, his whole decision consists in drawing a single conclusion of law from an undisputed state of facts, a general exception to such decision is available on appeal; although he might, perhaps, be required to specify the particular portion of the decision which he claims to be erroneous, when that decision involves a variety of points. Ct. of Appeals, 1854, Pratt v. Foote, 9 N. Y. (5 Seld.), 463. 36. Upon a trial by a judge, without a jury, a general exception to all the conclusions of law is sufficient; but it is better to put in an exception to each refusal of the judge to hold as requested, and to each of his conclusions upon the law. Conclusions of fact need no exception. Ct. of Appeals, 1856, Magie v. Baker, 14 N. Y. (4 Kern.), 435. 37. When a trial of the facts is had before the court, without a jury, as to all decisions made during the progress of the trial, the exceptions must be taken at the time, as on jury trials. But decisions upon matter of law, not made until after the cause is submitted, may be excepted to within ten days after notice of judgment. Supreme Ct., Sp. T., 1852, Gilchrist v. Stevenson, 7 How. Pr., 273. and the successive amendments of sections 267, 268, and 272, of the Code of Procedure stated. Ib. 41. It seems, that formal exceptions to reports of referees, under interlocutory decrees, are no longer necessary. Exceptions to the evidence before the referee at the hearing are sufficient; and where counsel file exceptions to the report itself, it is not ground of objection that they are not sufficiently specific under the requirements of the old practice, but they should be regarded merely as the points of counsel's argument. Everston. Givan, 16 How. Pr., 25. 42. Form of an exception. An exception must be express and direct to the very point in question. The exceptions may be all grouped in a single sentence; but they must, at least, be mentioned as exceptions, taken at the proper time, and plainly applied by the bill to the points raised. Supreme Ct., 1837, Willard v. Warren, 17 Wend., 257. 43. An exception to all testimony of a witness as to his conduct after a certain fact, and when the prisoner was not present, is too broad, unless the bill sets out all the testimony of the witness, and it is wholly incompetent. Supreme Ct., 1845, People v. Bodine, 1 Den., 281. 38. The exceptions which, under section 268 of the Code, may be taken in case of trial by the court, to a decision upon a matter of law 44. In an action against an indorser, the arising upon such trial, and which must be bill of exceptions merely stated that when the taken, if at all, within ten days after notice of plaintiff rested, the defendant moved for a the judgment, are those, and only those, which, nonsuit, which was denied, and defendant exunder the former system of practice, were cepted;-Held, that this did not present the made to the rulings of the court, after the question as to the sufficiency of the evidence evidence was closed, and before the jury re- of notice of dishonor of the bills which were tired. This clause of the section does not the subject of the suit, so as to permit that authorize exceptions to be taken after judg-question to be inquired into on a motion for a ment, to matters arising during the trial, and | new trial. Ct. of Appeals, 1850, Cowperthwhere there is an opportunity to except at the wait v. Sheffield, 3 N. Y. (3 Comst.), 243. time the adverse decision is made. party can except on a point ruled against him as the trial is proceeding, but omits to do so, and acquiesces in the decision, it might lead to great injustice to give him the benefit of an exception taken after the judgment. Ct. of Appeals, 1856, Hunt v. Bloomer, 13 N. Y. (8 Kern.), 341; S. C., 12 How. Pr., 567; S. P., Brewer v. Isish, 12 How. Pr., 481. Where a 39. Reference. The court cannot, on appeal, review the decision of a referee, if there is no exception to it. [Code, § 268.] Supreme Ct., 1856, Brewer v. Isish, 12 How. Pr., 481. 40. The practice in respect to exceptions, 45. Defendants gave notice that they excepted "to the decision of the referee whereby he decided that there was due from the defendants to the plaintiff, the sum of," &c.,— Held, equivalent to an exception to the conclusion of law derived by the referee from the facts found by him, and sufficient to entitle them to review the decision on appeal. Supreme Ct., 1849, Wilson v. Allen, 3 How. Pr., 869. 46. On the trial of a cause, the defendant objected to the competency of a witness offered by plaintiff, and the objection was considered and overruled, but no exception, if any How Exceptions are to be Taken. was taken, was noted in the judge's minutes. faith, and not to hinder or delay creditors." Held, on settlement of a case made by defend- The defendants excepted generally to this porant on appeal-1. That it was not necessary, tion of the charge; and, on the argument of in order to entitle him to review the ruling of the appeal, contended that the judge should the court, that he should procure an exception have said, "not to hinder, delay, or defraud to the admission of evidence objected to, to creditors." be formally noted in the minutes. 2. That the affirmative testimony of witnesses, that an exception was actually taken, would outweigh the negative testimony of an equal number who testified that they were present at the trial, and that no exception was taken. Supreme Ct., Sp. T., 1856, Sanger v. Vail, 4 Abbotts' Pr., 217; S. C., 18 How. Pr., 500. 47. Exception to nonsuit. A nonsuit will not be set aside upon an exception merely to the granting of the nonsuit, where the evidence is such that a verdict either way would not be disturbed. Where there are questions of fact, the party may demand the submission of the case to the jury, and a refusal to comply with the demand is ground of exception, if this demand is specifically made. It is not sufficiently made by objecting to the nonsuit, for that must be deemed an objection to the rule of law declared by the judge, upon admitted or established facts, and not a request to go to the jury to ascertain what the facts are. Supreme Ot., 1859, Bidwell v. Lament, 17 How. Pr., 357. 48. Direction to give verdict. Where the court direct a certain verdict to be given, if a party wishes to review the decision of the court as to the facts assumed to have been proved, his bill of exceptions should show the conclusions of fact, to which the court below arrived, and the ruling thereon. The Court of Appeals will not, in an action of a legal nature, review the testimony to ascertain what facts were assumed. Ct. of Appeals, 1852, Mead v. Northwestern Ins. Co., 7 N. Y. (3 Seld.), 530. 49. Exception by one of two defendants. An exception to evidence relevant as to one of two co-defendants, but irrelevant as to the other, must be stated as being taken by the defendant, as to whom it is irrelevant. If stated generally, as taken by the defendants, it is not error to overrule it. Supreme Ct., 1858, Black v. Foster, 28 Barb., 387; S. C., 7 Abbotts' Pr., 406. 50. Indefinite exception. On the trial of an action which drew in question the validity of a sale of chattels, the judge left to the jury the question "whether the sale was in good Held, that the exception should not be sustained. If the sale was in good faith, it could not have been to defraud creditors; and if it was desired that the question of fraud should be brought more distinctly before the jury, a general exception was too indefinite. The omission of the word "defraud," should have been specified. Supreme Ct., 1855, Wyman v. Hart, 12 How. Pr., 122. 51. A general exception to a refusal to charge several matters in one entire proposition is ineffectual, if any of the matters are wrong. [2 Cow. & H. Notes, 270.] Supreme Ct., 1848, Vallance v. King, 3 Barb., 548. 52. Plaintiff offered to disprove the recitals contained in a record, and that the record itself was untrue in every particular, specifying his grounds of objection. The evidence was excluded on defendant's objection, that the record was conclusive of all the facts contained in it. Held, that the record not being conclusive of all the facts, an exception to the exclusion of the evidence was sufficient. Ot. of Appeals, 1852, Adams v. Saratoga & Washington R. R. Co., 10 N. Y. (6 Seld.), 828. 53. General exception to admission of evidence. An objection to the admissibility of evidence should prevail, notwithstanding its general character, where it appears that it could not have been obviated on the trial,— e. g., where the subject of the evidence offered by a defendant, as constituting a defence, does not, in law, constitute any defence. Ot. of Appeals, 1852, Merritt v. Seaman, 6 N. Y. (2 Seld.), 168. 54. An exception to a ruling admitting the reading of certain proceedings as evidence, is not sufficient, if founded on an objection which did not specify the ground of the objection, and the evidence was such that any part of it, if offered separately, would have been competent. Ct. of Appeals, 1857, Requa v. Holmes, 16 N. Y. (2 Smith), 193. 55. Where the defence of limitations was interposed, the plaintiff produced the summons in the action, which was served after the expiration of the six years; but it had upon it the under-sheriff's indorsement that How Exceptions are to be Taken. it was received on a day which was within the court, on the trial of a cause, contains sevthe six years. The judge ruled that the action was to be deemed commenced on the day of the indorsement, to which the defendant excepted. eral distinct propositions, and exception is taken to the charge generally, if either proposition be sound and correct, the exception will be unavailable. Ct. of Appeals, 1851, Haggart v. Morgan, 5 N. Y. (1 Seld.), 422; 1852, Hunt v. Maybee, 7 N. Y. (3 Seld.), 266; 1858, Hart v. Rensselaer & Saratoga R. R. Co., 8 N. Y. (4 Seld.), 37; Acker v. Ledyard, Id., 62; 1853, Howland v. Willetts, 9 N. Y. (5 Seld.), 1701; 1855, Decker . Mathews, 12 N. Y. (2 Kern.), Held, that the exception was sufficient to allow raising the objection that the indorsement was not evidence of the delivery to the sheriff. The naked proposition of law was so clear, and the fact that the defendant, before the charge, insisted that there was no proof that the commencement of the action was 313. To the same effect, 1853, Fitch v. Livingwithin six years, showed that the exception was meant to question the proof, not merely the proposition of law. N. Y. Superior Ct., 1857, Wardwell v. Patrick, 1 Bosw., 406. 56. Where it is stated in the case that a witness named was sworn and examined "under objection and exception by the defendant's counsel," the court, on appeal, will only consider whether the witness was, upon the facts appearing in the case, a competent witness for the plaintiff. Such an objection and exception does not bring under examination particular testimony given by the witness, not further objected to, if any of such testimony was admissible. N. Y. Superior Ct., 1858, Graham v. Dunigan, 2 Bosw., 516. 57. In an action against N. and V., to charge as an equitable lien upon the land of N. moneys which he received from V., but which belonged| to the plaintiff, and which V. held in trust for her, the plaintiff offered letters of V. as evidence against both. One of these letters admitted the trust character of the funds. Held, that the defendants' exception to the whole series of letters, as inadmissible as against N., was properly overruled, although others of the series were inadmissible, and should have been excluded if separately excepted to; and the judge not having been asked to limit the purpose for which the letters were received, it could not be objected, on appeal, that he did not do so. Ct. of Appeals, 1858, Day v. Roth, 18 N. Y. (4 Smith), 448. ston, 7 How. Pr., 410. N. Y. Superior Ct., 1856, French v. White, 5 Duer, 254. Supreme Ct., 1856, Snell v. Snell, 3 Abbotts' Pr., 426; 1858, Robinson v. N. Y. & Erie R. R. Co., 27 Barb., 512. N. Y. Com. Pl., 1855, East River Bank v. Gedney, 4 E. D. Smith, 582; and see Carland v. Day, Id., 251; McBurney v. Cutler, 18 Barb., 203. 60. A general exception "to the whole of the charge of the court, and to each part of it," when the charge involves more than a single proposition of law, and is not, in all respects, erroneous, presents no question for review on appeal. The exceptant must call the attention of the judge to the points which he deems erroneous. [5 Den., 213.] Ct. of Appeals, 1852, Jones v. Osgood, 6 N. Y. (2 Seld.), 233; 1854, Caldwell v. Murphy, 11 N. Y. (1 Kern.), 416. 61. A general exception "to each and every part of the charge," must be disregarded. Ct. of Appeals, 1854, Caldwell v. Murphy, 11 N. Y. (1 Kern.), 416. 62. But where the bill of exceptions shows expressly that each of the offers and requests was separately made and ruled upon, and that each of these decisions was severally excepted to, it is sufficient, though the statement is all contained in one sentence. Ct. of Appeals, 1854, Dunckel v. Wiles, 11 N. Y. (1 Kern.), 420. 63. The defendant requested the judge, after his charge to the jury, to give them further a 58. It seems, that where a party stands on certain instruction, which the judge refused to his exception to evidence, without asking that do; to which refusal, and to the whole charge, such evidence be submitted to the jury, a as made, the defendant excepted;-Held, that general exception to the direction by the judge the exception to the refusal was sufficiently of a verdict, raises no question as to the suffi-pointed; but the exception to the whole of ciency of the evidence. Plumb v. Cattaraugus the charge as made was entirely too general, County Mutual Ins. Co., 18 N. Y. (4 Smith), and must be disregarded. Ot. of Appeals, 1853, Booth v. Swezey, 8 N. Y. (4 Seld.), 276. 64. It seems, that an exception to all that |