Where the exception is taken to the charge of the judge, made to the jury, the exception must be specific in its nature. In a reported case, which went to the court of appeals, that court said the plaintiff's counsel excepted to the whole charge as given, and to each part of it. The charge contained several propositions, as to some of which there is no doubt but what they were in accordance with the law. Some of them are, to say the least, of doubtful correctness. Upon the argument, two questions were made, one that the judge erred in his construction of a contract; the other, that the judge's instructions as to the damages, were incorrect. The exceptions did not call the attention of the judge to the points which were claimed to be erroneous. They did not suggest to his mind what the counsel excepting would have him hold, or wherein his charge was wrong. If the counsel had presented to the judge the two distinct points which he makes here, we cannot say how he would have disposed of them. It has been held in many cases that the party complaining of the charge of a judge, must put his finger on the point of which he complains. If he does not do so, no court of review can regard it. The rules upon this subject, are tending rather to increased strictness, and not at all to relaxation. They have their foundation in a just regard to the fair administration of justice, which requires that when an error has supposed to have been committed, there should be an opportunity to correct it at once, before it has had any consequences, and does not permit the party to lie by without making his objection, and take the chances of success on the grounds on. which the judge has placed the cause; and then, if he fails to succeed, avail himself of an objection, which, if it had been stated, might have been removed. A general exception to a charge, and every part of it, when the charge involves more than a single proposition of law, and is not in all respects erroncous, presents no question for review upon appeal.1

Where a general objection is made to the decision of a court on the trial of a cause, and on review thereof the decision, if objectionable at all, is so only in part, the party is not allowed

'Jones v. Osgood, 6 N. Y. Rep., 233; See Lansing v. Wiswall, 5 Denio, 213; Caldwell v. Murphy, 1 Kern, 416; Sands v. Church, 2 Seld., 347; Hunt v. Maybee, 3 Seld., 266; Hart v. Rens. & Sar. R. R. Co., 4 Seld., 37; Murray . Smith, 1 Duer., 412.

to avail himself of the objection for the want of precision in stating it at the trial.1

Matters resting in the discretion of a judge, are not generally grounds of exception. Where, upon the trial of a cause, the proofs have once been closed, the refusal of the court to allow them to be opened, with a view to further testimony, cannot form the subject of exceptions, it being a matter resting entirely in discretion. So the refusal of a court to postpone a cause, cannot be reviewed by exceptions.3 The decision of a court on a matter within its discretion, is not the subject of exceptions.1

If a witness who has been duly subpoenaed, either neglect to attend, or leave court after the trial has commenced, it is in the discretion of the judge whether he will suspend the trial until the witness can be brought in; and the decision of a judge upon a matter resting in his discretion, cannot be reviewed on exceptions. So, likewise, the denial of a motion to amend, where the law reposes a discretion in the judge, is not an appropriate ground of exception.

An opinion expressed by a judge upon a hypothetical case put by counsel, cannot be made the ground of exception.

Where it was objected that the judge, in his charge to the jury, upon the facts in the case, went beyond the line of his duty, it was held to be no ground of exception.

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An error committed by the admission of incompetent evidence in a court of record, against an objection by the opposite party, is cured, and an exception thereto rendered nugatory, by a subsequent direction to the jury to disregard such evidence."

So, also, the admission of irrelevant testimony is not error, if it is afterwards made pertinent by other testimony."

In order to avail a party of the omission of a judge to charge upon a question of law, or where the court omitted to charge the

Roth v. Schloss, 6 Barb., 308; See Brown v. McCune, 5 Sand., 224; Phincle v. Vaughn, 12 Barb., 215.

jury as to the legal inference arising from the testimony in the case, it must appear by the exceptions that not only the fact existed upon which the question arose, but also that the court was distinctly requested to instruct the jury as to the law on that point.1

The general rule in relation to exceptions is, that they must be taken to a decision made on the trial.

Where, in deciding the competency of a witness, the judge before whom the cause was tried, arguendo, expressed the opinion that such witness could not have been joined as a co-plaintiff in the suit, the defendant could not, on a writ of error, be at liberty to insist upon such point as error, it not having been presented for decision; the exception taken on the trial relating solely to the decision of the judge as to the competency of a partner as a witness.2

Where evidence is erroneously received against a party, to which he excepts, and afterwards insists upon and proves the same facts himself, this is deemed a waiver of the exception, and he cannot avail himself of it on a motion for a new trial.3

Where a refusal of a judge to non-suit is excepted to, a new trial will not be granted on that ground, if in a subsequent stage of the cause the facts necessary to the maintenance of the action be shown.4

Thus, where the evidence on which the plaintiff rests is not sufficient to entitle him to a recovery, and a non-suit is denied, a verdict will not be set aside for such cause, if subsequently in the progress of the trial, the defendant supplies the necessary proof.5

An exception to the charge of a judge will not lie, where there is no error in point of law in the charge, although the comments of the judge upon the evidence, strongly indicate an opinion adverse to the party against whom the verdict is rendered."

It is also no objection to the charge of a judge, that in commenting upon the testimony he points out discrepancies in the relation given by witnesses at different times, of the facts of a case."

'Low v. Merrills, 6 Wend., 268. See Reab v. McAllister, 8 Wend., 112. • Ward v. Lee, 13 Wend., 41. 'Hayden v. Palmer, 2 Hill, 205.

⚫ Lansing v. Van Aylstyne, 2 Wend., 561.

• Jackson v. Leggett, 7 Wend., 377.

• Jackson er dem. Bigelow v. Timmerman, 12 Wend., 299. The People v. Genung, 11 Wend., 18.

C. P.-28

An exception will not lie to the charge of a judge to a jury, on the grounds of the comments of the judge upon the evidence.1

The exceptions ought to be on some point of law, either in admitting or rejecting evidence, or upon a challenge, or some matter of law arising upon a fact not denied, in which either party is overruled by the court.2

Exceptions are sufficiently specific where it appears that each offer or request was separately made and passed upon by the court, and each ruling excepted to."

An exception to the decision of a judge, admitting testimony objected to, is not available unless material testimony was admitted which would be embraced in the objection.*

A general objection to the reading of an instrument in evidence is not available on review where the defect was in the certificate of its proof or acknowledgment, and was not pointed out.5

A general objection to the admissibility of evidence is sufficient, where the objection could not have been obviated on the trial had the specific grounds of objection been pointed out.

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As a general rule, we may say that the exception should not only be made at the time of the trial, but it should be specific in its nature, and point out, with particularity and precision, the alleged error in law complained of in regard to the rulings or decisions of the court. The policy of the law is to discourage litigations; and it is better if the counsel can see that a material error in law, prejudicial to the interests of his client, has been committed by the ruling or decision of a judge in the haste of the trial, that the court should have its attention called to it specifically and with sufficient accuracy to remedy the error at the time, and thus save perhaps the labor, expense and delay of preparing the papers and making a motion for a new trial upon a bill of exceptions. The courts, therefore, as seen from the decisions, of which a few are above cited, have refused to regard exceptions taken at the trial, which seem to them too broad and general in their nature to have allowed the trial judge to comprehend what were the actual grounds of exception intended to be taken by the counsel.

Peo. v. White, 14 Wend., 111.
Dunckle v. Wiles, 1 Kern., 420.

Kelly v. Kelly, 3 Barb., 419.

Howland v. Willetts, 5 Seld., 170; Stephens v. Peo., 4 Park., 396.

Mabbett v. White, &c., 2 Kern., 442; Brown v. Cayuga R. R., 2 Kern., 486. * Merritt v. Seaman, 2 Seld., 168.

The courts say, in substance, that it would be equally well for the attorney to pay a little more attention to his case, and state his exceptions with precision, and obtain his relief at the trial, as it is for him to make vague and indefinite objections, which may be susceptible of two or three meanings and ambiguous, and, upon his motion for a new trial, claim that his exceptions may mean whatever may be most beneficial to his client's interest, and ask the appellate court to put that construction upon them. It is, therefore, of vital importance, where it is intended to review a trial upon a bill of exceptions, that the practitioner should be clear, plain and explicit in the exceptions raised by him during the trial, and point out with accuracy the supposed errors of law complained of.1

Counsel, when stating an objection to a question (as he may be required to do), should state one which is well founded, otherwise his exception to the decision of the court, in overruling his objection and admitting the evidence, will not avail him; although the court may take into consideration the influence of such evidence when called upon to grant a new trial.2

Where a witness is allowed to answer a question without objection, an exception subsequently made will be disregarded.3

§ 4. BILL OF EXCEPTIONS.

A bill of exceptions lies only to bring up exceptions taken at the trial to the decisions of the court upon the evidence, or the charge given to the jury. It properly should contain no more of the facts which transpired at the trial than are necessary distinctly to raise the questions intended to be presented for review.

At common law the only regular mode of redress for errors occurring on criminal trials was by motion for a new trial in the court where the trial was had, unless the error was in some matter which formed a part of the record, when it might be reviewed after judgment by writ of error. Bills of exception, by which questions of law made and decided on such trials may be brought up and reviewed in a higher court, were unknown to the common

'See Ellis v. Peo., 21 How., 356.

'Harris v. Panama R. R. Co., 5 Bos., 812. Cheeseborough v. Taylor, 12 Abb., 227. Peo. v. Dalton, 15 Wend., 581.