bill of exception

BILL OF EXCEPTION, practice. The statement in writing, of the objection made 
by a party in a cause, to the decision of the court on a point of law, 
which, in confirmation of its accuracy, is signed and sealed by the judge, 
or court who made the decision. The object of the bill of exceptions is to 
put the question of law on record, for the information of the court of error 
having cognizance of such cause. 
     2. The bill of exception is authorized by the statute of Westminster 2, 
13 Ed. I. c. 31, the principles of which have, been adopted in all the 
states of the Union. It is thereby enacted, "when one impleaded before any 
of the justices, alleges an exception praying they will allow it, and if 
they will not, if he that alleges the exception writes the same, and 
requires 'that the justices will put their seals, the justices shall do so, 
and if one will not, another ,shall; and if, upon complaint made of the 
justice, the king cause the record to come before him, and the exception be 
not found in the roll, and the plaintiff show the written exception, with 
the seal of the justices thereto put, the justice shall be commanded to 
appear at a certain day, either to confess or deny his seal, and if he 
cannot deny his seal, they shall proceed to judgment according to the 
exception, as it ought to be allowed or disallowed." The statute extends to 
both plaintiff and defendant. Vide the, form of confessing a bill of 
exceptions, Burr. 1692. And for precedents see Bull. N. P. 317; Brownlow's 
Entries; Latine Redivio, 129; Trials per pais, 222, 3; 4 Yeates, 317, 18; 2 
Yeates, 295, 6. 485, 6; 1 Morgan's Vade Mecum, 471-5. Bills of exception 
differ materially from special verdicts; 2 Bin. 92; and from the opinions of 
the court filed in the cause. 10 S. & R. 114, 15. 
     3. Here will be considered, 1 the cases in which a bill of exceptions 
may be had; 2. the time of making the exception; 3. the form of the bill; 4. 
the effect of the bill. 
     4. - 1. In general a bill of exception can be had only in a civil case. 
When in the course of the trial of a cause, the judge, either in his charge 
to the jury, or in deciding an interlocutory question, mistakes the law, or 
is supposed by the counsel on either. side, to have mistaken the law, the 
counsel against whom the decision is made may tender an exception to his 
opinion, and require him to seal a bill of exceptions. 3 Bl. Com. 372. See 
Salk. 284, pl. 16 7 Serg. & Rawle, 178; 10 Id. 114, 115 Whart. Dig. Error, 
D, E 1 Cowen, 622; 2 Caines, 168; 2 Cowen, 479 5, Cowen, 243 3 Cranch, 298 4 
Cranch, 62; 6 Cranch, 226; 17 Johns. R. 218; 3 Wend. 418 9 Wend. 674. In 
criminal cases, the judges, it seems, are not required to seal a bill of 
exceptions. 1 Chit. Cr. Law, 622; 13 John. R. 90; 1 Virg. Cas. 264; 2 Watts, 
R. 285; 2 Sumn. R. 19. In New York, it is provided by statute, that on the 
trial of any indictment, exceptions to any decision of the court may be made 
by the defendant, in the same cases and manner provided by law in civil 
cases and a bill thereof shall be settled, signed and sealed, and filed with 
the clerk of the court. But such bill of exception shall not stay or delay 
the rendering of judgment, except in some specified cases. Grah. Pr. 768, 
note.. Statutory provisions have been made in several other states 
authorizing the taking of exceptions in criminal cases. 2 Virg. Cas. 60 and 
note 14 Pick. R. 370; 4 Ham. R. 348; 6 Ham. R. 16 7 Ham. R. 214; 1 Leigh, R. 
598; 14 Wend. 546. See also 1 Halst. R. 405; 2 Penn. R. 637. 
     5. - 2. The bill of exceptions must be tendered at the time the 
decision complained of is made or if the exception be to the charge of the 
court, it must be made before the jury have given their verdict. 8 S. & R. 
216 4 Dall. 249; S. C. 1 Binn. 38; 6 John. 279; 1 John. 312; 5 Watts, R. 69; 
10 John. R. 312; 5 Monr. R. 177; 7 Wend. R. 34; 7 S. & R. 219; 11 S. & R. 
267 4 Pet. R. 102; Ala. R. 66; 1 Monr. 215 11 Pet. R. 185; 6 Cowen, R. 189. 
In practice, however, the, point is merely noted, at the time, and the bill 
is afterwards settled. 8 S. & R. 216; 11 S. & R. 270; Trials per pais, 467; 
Salk. 288; Sir T. Ray. 405 Bull. N. P. 315-16; Jacob's Law Dict. They may be 
sealed by the judge after the record has been removed by a writ of error, 
and after the expiration of his office. Fitz. N. B. 21 N, note. 
     6. - 3. The bill of exception must be signed by the judge who tried the 
cause; which is to be done upon notice of the time and place, when and where 
it is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 316 3 Bl. Com. 372. 
When the bill of exception is sealed, both parties are concluded by lit. 3 
Dall. 38; Bull. N. P. 316. 
     7.- 4. The bill of exceptions, being part of the record, is evidence 
between the parties, as to the facts therein stated. 3 Burr. 1765. No notice 
can be taken of objections or exceptions not appearing on the bill. 8 East, 
280; 3 Dall. 38, 422, n.; 2 Binn. 168. Vide, generally, Dunlap's Pr.; Grah. 
Pr.; Tidd's Pr.; Chit. Pr.; Penna. Pr.; Archibold's Pr. Sellon's Pr.; in 
their several indexes, h. t.; Steph. Pl. 111; Bac. Ab. h. t.; 1 Phil. Ev. 
214; 12 Vin. Ab. 262; Code of Pract. of Louisiana, art. 487, 8, 9; 6 Watts & 
Serg, 386, 397; 3 Bouv. Inst. n. 3228-32.