the advantage of a challenge to the array to which the other side had demurred.

In 2 Edw. IV. fol. 6 b, a release to a tenant at will by his lessor was pleaded in assize, and disallowed by the Court; " And Gennei and other apprentices for the defendant prayed that the plea might be entered." MarkNo, it shall not; but make a bill, and we will seal it."

66

21 Edw. IV. fol. 53. Debt on an obligation of I. of D. Defendant pleaded that there were two D.'s in the same county, and neither without addition. Brian disallowed the plea, on the ground that defendant was estopped by his deed in which he was described of D. only. Brigges—“We pray you to seal a bill of our exception." Brian"Make your bill, and I will seal it with my

own seal."

These instances show that the judges have endeavoured to carry out the spirit of the statute (x).

(x) In modern practice also, it is not unusual for the judge before whom the cause is tried himself to suggest to counsel to tender a bill of exceptions, where any

They also show very clearly that the common law before the statute, and the mischief to be remedied by the statute, were such as above described.

From the above account of the origin and nature of the bill of exceptions, it is evident, that to afford a remedy for the improper rejection or reception of evidence, or the misdirection or other misconduct of a judge at nisi prius, was neither the primary nor principal object of its creation; but that it was devised and intended to afford the parties a security from the effects of the precipitation, however laudable its motive and object, the possible ignorance, and the accidental or other error of the Court:-that the regulation of the trial by jury was but one, and that not the largest, of its original functions;—that its operation extended over the whole field of errors in law;—and that its object was to leave no part of that field unexplorable by a Court of Error,—an object it was fully adequate to attain. We have also seen, that

matter of doubt or difficulty occurs in the course of the trial of sufficient importance to justify that course.

no Court of original jurisdiction, proceeding according to the course of the common law, is too high for it to reach,—none so low as to escape from its operation; and although, from the mode in which the judges have carried out the spirit of the statute, the grievance it was passed to remedy has almost become mere matter of history, it is well to know that such a remedy still exists, and that the statute is still applicable to all cases falling within "the same or greater mischief."

London: printed by C. Roworth and Sons, Bell Yard, Temple Bar.