are shown by the evidence, the record need not contain the evidence to enable the appellate court to review such instruction. And ob viously, if an instruction complained of clearly relates to a matter of law involved in the case as shown by the pleadings, independent of the evidence, it may be reviewed without all the evidence being in the record.10 So, too, if an instruction is given which contradicts or is inconsistent with the pleadings, it is not necessary to bring into the record any of the evidence,11 and the general rule has been laid down that on exceptions to instructions given on the ground of errors of law, no evidence need be brought into the record.12 Actual or probable injury from erroneous instructions given must also appear on the record to authorize a reversal on that ground.18

111. Remarks of Counsel.-Improper remarks of counsel must be incorporated into the record in order to be subject to review by the appellate court.14 Obviously this is a matter which does not become a part of the judgment roll, and must therefore be preserved in the bill of exceptions or its statutory substitute. It is also clear that the mere assigning of such remarks as one of the grounds for a new trial is not sufficient to preserve such matter for review.15

112. Taking of Exception.- Where the taking of an exception to the ruling of the trial court is necessary to preserve for review the action of the court thereon, the record must show that an exception was taken; 16 and an appellate court will not review rulings admitting evidence, unless the record shows objections and exceptions by the appellant to the introduction and admission of the evidence.17 But it has been held that a bill of exceptions embodying the charge, and, immediately following it, stating that one of the counsel said, "The defendant excepts," with the ground of exception, including a

9. Duggins v. Watson, 15 Ark. 118, 60 Am. Dec. 562; State v. Tillett, 173 Ind. 133, 89 N. E. 589, 140 A. S. R. 246, 20 Ann. Cas. 1262.

10. Seevers v. Gabel, 94 Ia. 75, 62 N. W. 669, 58 A. S. R. 381, 27 L.R.A. 733.

11. Duggins v. Watson, 15 Ark. 118, 60 Am. Dec. 560.

12. Peden v. Moore, 1 Siew. & P. (Ala.) 71, 21 Am. Dec. 649; Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N. E. 913, Ann. Cas. 1912C 737.

13. Williams v. Carpenter, 36 Ala. 9, 76 Am. Dec. 316; Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336; Johnson v. Evans, 8 Gill (Md.) 155, 50 Am. Dec. 669; Bosley v. Chesapeake Ins. Co., 3 Gill & J. (Md.) 450, 22 Am. Dec. 337;

Sawyer v. Chicago & N. W. R. Co., 22 Wis. 403, 99 Am. Dec. 49.

14. Gannon v. People, 127 Ill. 507, 21 N. E. 525, 11 A. S. R. 147; State v. James, 194 Mo. 268, 92 S. W. 679, 5 Ann. Cas. 1007; State v. Feeley, 194 Mo. 300, 92 S. W. 663, 112 A. S. R. 511, 3 L.R.A. (N.S.) 351.

15. State v. James, 194 Mo. 268, 92 S. W. 679, 5 Ann. Cas. 1007.

16. Jacksonville Electric Co. บ. Adams, 50 Fla. 429, 39 So. 183, 7 Ann. Cas. 241 (where bill of exceptions failed to show that exception was taken to the overruling of a motion for new trial).

17. Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055, 119 A. S. R. 762, 9 Ann. Cas. 874, 9 L.R.A. (N.S.) 718.

refusal to charge as requested and exceptions to the charge as delivered, sufficiently shows that exceptions to the charge were seasonably taken.18

The Bill of Exceptions

113. In General.-The bill of exceptions is a formal statement in writing of the exceptions taken to the opinion, decision, or direction. of the judge, delivered during the trial of the cause, setting forth the proceedings on the trial, the opinion or decision given, and the exception taken thereto, and sealed by the judge in testimony of its correctness. 19 Bills of exception were unknown to the common law.20 A writ of error might be had either for an error apparent on the record or for an error in fact, but it did not lie for an error in law not appearing on the record, and therefore where a party alleged anything ore tenus which was overruled by the judge this could not be assigned for error as it did not appear on the record. To remedy this evil the statute of 13 Edw. I. c. 31 created the bill of exceptions. This statute was held to apply to civil cases only, though in minor criminal cases bills of exception were allowed ex gratia, and did not extend to cases of treason or felony. At the present time, however, the statutes provide for bills of exception in criminal as well as civil cases. A bill of exceptions is not, however, a proper medium through which to certify to the appellate court matters which must necessarily be a part of the original record in the case. Thus to review a ruling on pleadings it is not sufficient to set forth the pleadings in a bill of exceptions, as they are a part of the record proper and can only be preserved in that form. The bill of excep

559,

18. Findlay v. Pertz, 66 Fed. 427, that while error lies in a capital case a 31 U. S. App. 340, 13 C. C. A. bill of exceptions will not be allowed 29 L.R.A. 188. or considered in such a case. Mitchell v. State, 3 Mo. 283, 25 Am. Dec. 442.

19. Everman v. Hyman, 26 Ind. App. 165, 28 N. E. 1022, 84 A. S. R. 284.

For a full treatment of the necessity, time and manner of making objections, and of saving exceptions to the ruling of the trial court therein, see TRIAL. 20. Freeman v. People, 4 Den. (N. Y.) 9, 47 Am. Dec. 216; Hopkins Com., 50 Pa. St. 9, 88 Am. Dec. 518; State v. Croteau, 23 Vt 14, 54 Am. Dec. 90.

1. Wheeler v. Winn, 53 Pa. St. 122, 91 Am. Dec. 186.

2. Hopkins v. Com., 50 Pa. St. 9, 88 Am. Dec. 518; State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90.

3. Expressman's Mut. Ben. Ass'n v. Hurlock, 91 Md. 585, 46 Atl. 957, 80 A. S. R. 470; New Orleans, J. & G. N. R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98.

The appellate court is not precluded from considering exceptions which have been made a matter of record by the signature and seal of the trial judge because the record proper has been blended with the bill of exceptions and the whole treated as a bill of exceptions. Davidson v. Fraser, 36 Colo. 1, 84 Pac. 695, 4 L.R.A. (N.S.) 1126.

4. Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S. W. 1143, 33

Thus in an early case it was held L.R.A. (N.S.) 216.

tions can bring up only errors in the ruling, direction, or judgment of the court; irregularities in the proceedings, or errors of the jury, cannot be reached thereby, except through some ruling of the court. The privilege of demanding a bill of exceptions is not restricted to a trial before a jury, and, although the necessity for its use except in such trials is of rare occurrence, the right thereto in other cases is recognized. For instance, a bill of exceptions may be allowed on overruling a motion to set aside a sheriff's sale where the motion was heard on oral evidence. Bills of exceptions are usually prepared by the party excepting and presented to the trial judge, though there is no objection to the judge himself preparing the bill. While a writ of mandamus may issue to compel the trial judge to sign a bill of exceptions, still he must determine its accuracy and whether it correctly recites the points made and rulings excepted to; he is required to sign only such a bill as he deems correct. There is considerable conflict of authority on the question whether a judge who has tried the case may be compelled by mandamus to settle and sign bills of exceptions after the expiration of his term of office, although he may have power to do so if he desires. The authorities which deny the right to compel the judge to do so, seem chiefly to base their decisions on the ground that though the judge may be authorized by statute to do so, the legislature cannot enjoin such duty upon a private citizen, nor require a person to continue to discharge his judicial duties after his term of office has expired. In at least one jurisdiction, when the trial court refuses to allow a bill of exceptions on the ground that it does not conform to the truth, the practice prevails of applying to the reviewing court by petition to establish the truth of the allegations in the bill presented. 10 The failure to state in the bill of exceptions the ground of objection to the admission of evidence is not reason for striking out the bill, though it may have an important bearing in determining the correctness of the court's ruling in any particular case. When the statement in the bill of exceptions and that in the statement of facts are not inconsistent, both should be looked to, and should be taken together as constituting the bill of exceptions upon any particular matter mentioned in either.11 No one would, of course, dispute the proposition

late court, unless it is excepted to and the exceptions are recorded in the bill when it is settled. Purple v. Union Pac. R. Co., 114 Fed. 123, 51 C. C. A. 564, 57 L.R.A. 700.

9. 36 L.R.A. (N.S.) 1087 note. 10. Com. v. Joslin, 158 Mass. 482, 33 N. E. 653, 21 L.R.A. 449.

The statement of facts in a bill of 11. Heffron v. Pollard, 73 Tex. 96, exceptions is conclusive in an appel- 11 S. W. 165, 15 A. S. R. 764.

that where there is no right of appeal, there is no right to have a bill of exceptions settled.12

114. Skeleton Bill.-It is a very general provision of the statutes that it shall not be necessary for the review of the action of the lower court, that the motion for a new trial or in arrest of judgment, the instructions, or the evidence be copied or set forth in the bill of exceptions filed in the lower court; provided the bill of exceptions so filed contains a direction to the clerk to copy the same and they are so copied into the record sent up to the appellate court.18 Under provisions of this character evidence, although not physically incorporated in the bill of exceptions, is a part of it in a legal sense, where the clerk certifies the skeleton bill, and, along with it, the stenographer's certificate, in which the oral testimony is set out, accompanied by the exhibits, means for identifying which are found in the description given by the witnesses and the marks found on the papers themselves, corresponding to the "ear-marks" given in the skeleton bill.14 And when evidence is certified by the trial judge, and a separate bill of exceptions is used to make it a part of the record, a reference in the bill to the certificate of evidence, stating that it is made a part of the record and a part of the bill of exceptions, is sufficient to make the evidence a part of the record. 15 Under the statutes providing for skeleton bills of exceptions, there must, however, be a direction to the clerk to copy or insert the matter, and the mere fact that the clerk of his own motion has seen fit to copy it into the record does not make it a part of the record.16

115. General Sufficiency of Bill.-Bills of exception are not required to be in any particular form, and are not invalid because they lack the usual formal beginning,17 and the courts are inclined to disregard mere formal defects and irregularities that do not cloud the record or violate a statutory requirement.18 The bill need not expressly state that it contains all of the evidence, a substantial statement to that effect being sufficient.19 It is not always essential to

12. Ray v. Hixon, 90 Wis. 39, 62 App. 165, 28 N. E. 1022, 84 A. S. R. N. W. 922, 48 A. S. R. 899. 284.

13. Winters v. Winters, 102 Ia. 53, 71 N. W. 184, 63 A. S. R. 428; Manatt v. Scott, 106 Ia. 203, 76 N. W. 717, 68 A. S. R. 293; Crawford v. Spencer, 92 Mo. 498, 4 S. W. 713, 1 A. S. R. 745.

14. Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A. (N.S.) 807.

18. Humbarger v. Humbarger, 72 Kan. 412, 83 Pac. 1095, 115 A. S. R. 204.

19. Mitchell v. Young, 80 Ark. 441, 97 S. W. 454, 117 A. S. R. 89, 10 Ann. Cas. 423, 7 L.R.A.(N.S.) 221; Bond v. United Railroads, 159 Cal. 270, 113 Pac. 366, Ann. Cas. 1912 C 50; Spangler v. Green, 21 Colo. 505,

15. State v. Legg, 59 W. Va. 315, 42 Pac. 674, 52 A. S. R. 259; Rock53 S. E. 545, 3 L.R.A. (N.S.) 1152. 16. State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas. 976.

well v. Capital Traction Co., 25 App. Cas. (D. C.) 98, 4 Ann. Cas. 648; Pomroy v. Parmlee, 9 Ia. 140, 74 17. Everman v. Hyman, 26 Ind. Am. Dec. 328; Sheibley v. Huse, 75

state in the bill the date of its presentation to the judge. When the date of presentation is nowhere stated in the body of the bill as a distinct and separate fact, and the bill is signed not later than the time allowed and it so appears from the bill itself, the date of signing by the judge may be regarded as the date of presentation to him for his signature. 20 A bill of exceptions should be so certain and full in its statements that the errors complained of are made to appear from the allegations of the bill itself.i

2

116. Signing and Sealing Bill.-Unless otherwise provided by statute, the bill of exceptions should be under the seal of the court, and signed by the trial judge; and each distinct exception which embraces an independent proposition of law should be signed and sealed by the court below before it can be regarded as a valid exception. Signing and sealing the last exception to a series of rulings excepted to does not make the whole one continuous exception properly certified to. But a bill of exceptions sealed but unsigned by the court is not defective when it is followed by a second bill regularly signed and sealed, and referring to the subject-matter contained in the unsigned bill. When the judge signs the bill of exceptions he thereby adopts and certifies every material statement in the bill which precedes his signature. And when, just preceding his signature, is the certificate of the shorthand reporter that the bill contains all the evidence, the same is adopted by the judge, and it is a sufficient certification that the bill contains all the evidence. The certificate of a trial judge that the bill of exceptions contains all the evidence pertaining or material to the questions raised by a motion for a directed verdict must be accepted as correct, if there is nothing properly in the record to impeach it. When, however, it appears from state

Neb. 811, 106 N. W. 1028, 13 Ann.
Cas. 376.

In Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 752, a statement that "the foregoing was all the evidence material in the cause" was held sufficient.

1. Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 A. S. R. 730; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 A. S. R. 911; Vass v. Com., 3 Leigh (Va.) 786, 24 Am. Dec. 695.

2. Moore v. Appleton, 34 Ala. 147, 73 Am. Dec. 448.

3. State v. Haines, 51 La. Ann. 731,

So. 372, 44 L.R.A. 837.

But a statement in the bill of exceptions that "the above is nearly all the testimony given" is not equivalent to a statement that "this is all 4. Ellicott v. Martin, .6 Md. 509, the evidence" or "the substance of 61 Am. Dec. 327.

25

the evidence" and is insufficient to 5. Baltimore & S. R. Co. v. Woodenable the appellate court to deter- ruff, 4 Md. 242, 59 Am. Dec. 72. mine whether the verdict is against 6. Everman v. Hyman, 26 Ind. the evidence. Love v. Moynehan, 16 App. 165, 28 N. E. 1022, 84 A. S. R. Ill. 277, 63 Am. Dec. 306.

20. Everman v. Hyman, 26 Ind. App. 165, 28 N. E. 1022, 84 A. S. R.

284.

284.

7. Lesch v. Great Northern R. Co., 97 Minn. 503, 106 N. W. 955, 7 L.R.A. (N.S.) 93