Crisman vs. McDonald et al. In this case it appears from the bill of exceptions, that the appellant asked the court to give six instructions which are set out at length, all of which the court refused, and the appellant excepted. The court, on its own motion, gave ten instructions, to all of which the appellants excepted. The exception is to the entire charge, and is general. The question now arises, what error is presented by the bill of exceptions. By excepting to an entire charge, containing ten different declarations of law, does the appellant lay his finger on the error complained of, if any one of the charges are good? The statute of Indiana regulating bills of exceptions is identical with the provisions of our code. In the case of the State v. Bartlett, 9 Ind., 571, the bill of exceptions after reciting the instructions asked and those refused, and those given, concludes as follows: "At the time the court made each one of the foregoing rulings and decisions, the state by her prosecutor objected and excepted." In commenting on this practice, the supreme court of that state said: "To say at the close of a bill of exceptions, that the party excepts to the opinion of the court in giving a series of instructions consisting of ten distinct propositions, and refusing to give another series of seventeen distinct propositions, lacks that precision and accuracy so essential in legal proceedings, especially in the higher courts. It violates alike the spirit and the let ter of the new practice." In the case of Jolly v. Terre Haute Draw Bridge Co., 9 Ind., 419, eleven distinct propositions of law were asked to be charged, which the court refused, and eleven were given to which the appellant excepted, generally, as is done in this case and the court said: "The error assigned is to the ruling of the court on each set of instructions collectively. This is not a good exception or assignment under the statute. The assignment of errors relied upon must be specific " Crisman vs. McDonald et al. In the case of Decker v. Matthews, 2 Kern., 313, and in Hunt v. Maghee, 3 Seld., 273, upon a similar state of case as the one at bar, it was held that a general exception to an entire charge could not be sustained, if any independent portion of the charge was correct. These cases are referred to by the supreme court of the United States, in Johnson v. Jones et al., 1 Black, 220, and the court said: "It is well settled, that if a series of propositions be embodied in instructions, and the instructions are excepted to in a mass, if any one of the propositions be correct, the exception must be overruled." * * * In the case of Bevier v. Dillingham, 18 Wis., 528, it was held, that it must appear from the exceptions whether the appellant comes here to review the facts or the law; continuing, the court said: "We have no hesitation in laying it down as a sound rule of practice, that a party filing his exceptions must make them so specific and certain as to show to which class they belong, whether the appeal is to review the facts or the law, or both. * * This is necessary in order to apprise the opposite party of the objection to be urged in the appellate tribunal; otherwise, the counsel might discuss one point in the court below, and come here to reverse the judgment upon another and quite a different point, not made there, and perhaps not then discovered." * In Reynolds v. Railroad, 43 N. H., 588, the court said: "An objection taken to the charge of the court, in general terms, is not sustainable. It is quite too broad. If any part of the instructions to the jury was regarded as objectionable, the exception should be taken to that specifically." The ninth instruction reads as follows: "If you find for the plaintiff, you will say so by your verdict, indicating the amount." The tenth is as follows: "If you find for the defendant, you will simply say so by your verdict." Both of these instructions are objected to, and we are at a loss to know Crisman vs. McDonald et al. why. As has been stated, it was held in Stillwell v. Gray, 17 Ark., 473, that where there is an exception to the instruction. given by the court below, and all the testimony saved by a bill of exceptions, this court will consider the testimony only so far as may be necessary to do so, in order to test the correctness of the instruction, but in that case, the exception was to a single instruction. That case differs from the one at bar in this, that the exceptions in this case relate to sixteen different propositions of law, while in the case alluded to, the bill of exceptions related to a single proposition. Now, the question arises, Is it the province or the duty of this court to take up the evidence in this case, and examine the instructions one by one, to see if it can pick a flaw, or find an error in any one of the charges? Justice DANIEL, in Camden v. Doremus, 3 How., 530, said the mere hint at objection should not entitle a party, in an appellate court, to spring upon his adversary defects which he never relied on in the court below. Our Code says (sec. 365) that an exception is an objection taken to a decision of the court upon a matter of law, and if the exception (sec. 369) is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing. The grounds of objection to giving the instructions complained of, and refusing to give those asked, do not appear in the record, neither does the bill of exceptions set them out. It may be claimed that the motion for a new trial sufficiently notifies this court of the grounds of objection. The reasons assigned for a new trial cannot be regarded as evidence of the action of the court upon the trial (17 Ky., 317). The real question in this case is, Is this court bound to take up the six instructions asked by the appellant, and examine the evidence presented by the bill of exceptions, one at a time, to see if any one of them is correct, and, after Crisman vs. McDonald et al. having done this, take up the ten instructions given by the court, to see if we can find any objection to them, and, if so, give the appellant the benefit of an error or blunder his counsel has not pointed out? It strikes us, if we should adopt such a rule, that the labor of counsel would be greatly ameliorated. Were we to do so, would we not be departing from the rule laid down in Carr v. Crain, 7 Ark., 250, that the party taking the exception should lay his finger on the error complained of? We do not wish to be understood as saying that the reason which the court below gave for refusing to give an instruction should be stated in the bill of exceptions. What is meant is, that the exception objected to must be stated with certainty. The reason for this rule is this: that this mode directs the attention of the judge to the wrong complained of, but if you allow counsel to object, generally, to a series of ten instructions, nine of which are right, such a course does not call the judge's attention directly to anything. We have examined the instructions given by the court on its own motion, and while some of them are very general, we can see no objection to them, such as would warrant a reversal. The instructions which the appellant asked, and which the court refused to give, such as are not clearly erroneous, are given substantially, and covered by those given by the court. It is not error for the court to refuse to give instructions asked by counsel. The question is, whether the law of the case, as given by the court, was correctly given, and whether it covered all the points arising in the case. We feel disposed to lay it down as a rule that, in the future, we will not reverse a judgment where there is an objection to the whole number of instructions given, if any one of them is good. It is hardly possible that in a series of ten instructions, they should all be erroneous, and, hereafter, we shall decline to search through a record, like the one in this case, to find Jones vs. Jones, Adm'r. an error, where counsel have excepted generally to the whole charge. Counsel must elect, specifically, what instructions they object to, to the end that the precise questions of law presented to the court below may be reviewed here. We do not propose to establish a rule which would allow counsel to take advantage of error, in this court, which never occurred to him in the court below. Judgment affirmed. JONES VS. JONES, Adm'r. TRUST ESTATES: Not barred by limitations, etc. he becomes a trustee for the widow and next of kin, and no lapse of CHANCERY: Jurisdiction in matters of dower. The probate courts of this state are invested with jurisdiction in matters of dower; but courts of chancery are not thereby ousted of their ancient jurisdiction in such matters. DOWER: Marriage prerequisite to, etc. Marriage is a prerequisite to the right of dower, and, in a suit for dower, where the fact of marriage is denied, proof of an actual marriage, either under the forms and solemnities prescribed by the statute, or as prescribed by the common law, is necessary. APPEAL from Sharp Circuit Court. Hon. ELISHA BAXTER, Circuit Judge. U. M. Rose, for appellees. BENNETT, J. The appellant filed her bill in the circuit court below as the widow of Elbert Jones, deceased, to com |