Origin of right.

English practice.

of exceptions, for the purpose of having the ruling or direction complained of reviewed by the Court above. The right of the party who is dissatisfied to have a bill of exceptions is founded on the Statute of Westminster, 2, c. 31, by which it is enacted, that "When one that is impleaded before any of the justices doth allege an exception, praying that the Justices will allow it, which if they will not allow it, if he that alleged the exception do write the same exception, and require that the Justices will put their seals for a witness, the Justices shall do so; and if one will not, another of the company shall. And if the King, upon complaint made of the Justices, cause the record to come before him, and the same exception be not found in the roll, and the plaintiff show the exception written with the seal of a Justice put to, the Justice shall be commanded that he appear at a certain day, either to confess or deny his seal. And if the justice cannot deny his seal, they shall proceed to judgment according to the same exception as it ought to be allowed or disallowed."

According to the practice prevailing in England, the exceptions are not treated as incorporated in the postea, and are not dealt with in the Court in which the cause is pending. The party who excepts is accordingly obliged to take proceedings in error, and have the matter determined in a Court of Irish statute. Error. By the Irish Act, 28 Geo. 3, c. 31, s. 1, however, it is enacted, "that it shall be sufficient if the Judge to whom such bill of exceptions shall be tendered to sign the same, and that it shall not be necessary for him to put his seal thereto, and that such bill of exceptions so signed shall remain with the clerk of Nisi Prius, and be incorporated in the postea, and be returned therewith to the Court in which the action is brought, which Court shall have authority to examine the same, and give judgment thereon, or make such order, either by arresting the judgment, granting a venire facias de novo, or otherwise as shall be agreeable to justice."

Where examinable.

In what cases right exists.

For what an exception lies.

Accordingly in this country the exceptions are treated as incorporated with the postea, and the party excepting is enabled to have the exceptions examined in the Court in which the action is brought before judgment is pronounced, in place of being obliged to remove them into a Court of Error, after the Court below has pronounced judgment. See further as to the construction of the Act, infra.

The right of a party to except only exists in civil cases. Accordingly exceptions cannot be taken at the trial of an information for libel (Rex v. M'Donnell, Huds. & Br. 439); nor in an information for penalties (Attorney-General v. Radloff, 23 L. J. Ex. 240). By 22 & 23 Vict. c. 21, s. 29 (English), a bill of exceptions may be tendered at the trial of any issue arising on the revenue side of the Court of Exchequer. This provision has not, however, been extended to Ireland, see 24 & 25 Vict. c. 92, s. 2. A bill of exceptions cannot be tendered upon the trial of an issue directed by the Court of Chancery (Clayton v. Nugent, 8 Jur. 867).

As before mentioned, an exception may be taken for an erroneous ruling or direction of the Judge. The mistake must, however, be upon some point of law, either in admitting or refusing evidence, or the like. Where the venue is local, an objection founded on a misdescription of the venue cannot be taken by a bill of exceptions at the trial, if the misdescription appears upon the face of the pleadings, inasmuch, as such an objection should have been taken by demurrer (M‘Mahon v. Leonard, 4 Ir. C. L. R. 16, with which compare Heywood v. Reynolds, 6 lr. L. R. 1). In Aldborough v. Bland, 7 Ir. C. L. R. 571, it was questioned whether the overruling of a challenge to

the array can be made the subject matter of an exception: see, however, the note to Miliar v. Warre, 1 Car. & P. 239. The fact that a Judge has allowed a leading question to be put, is not the subject of an exception (Lawder v. Lawder, 5 Ir. C. L. R. 27). Neither is the refusal of the Judge to direct the jury in a particular manner, the ground of an exception as it is for a misdirection and not a nondirection that a bill can be tendered, and the bill of exceptions should therefore state what the Judge has told the jury, and not what he has refused to tell them (Anderson v. Fitzgerald, 4 H. L. Cas. 484; Sedley v. M'Gowan, 7 Ir. C. L. R. 427). A refusal to nonsuit is not, for the same reason, a ground of exception (Sedley v. M'Gowan, ubi supra). Although nonsuiting a plaintiff against his will is (Corsar v. Corsar, 21 L. J. Q. B. 18).

Where the probate of a will was produced to prove a bequest of a term of years, and the Judge, in place of directing a verdict, left the question to the jury; it was held that a bill of exceptions would not lie (Chichester v. Phillips, T. Raym, 405). In such a case the party should have demurred to the evidence. So, also, no exception lies for refusing to direct the jury on a matter of fact (Malcolmson v. Morton, 11 Ir. L. R., 230); and where the Judge left it to the jury to say whether a document purporting to be signed by both parties was a complete agreement between them or merely signed as instructions for preparing an agreement, it was held that an exception would not lie (Greenham v. Gray, 3 Ir. Jur. N. S 9).

On a bill of exceptions the case must always have gone to the jury (Millar v. Warre 1 Car. & P. 239; sed vide Corsar v. Reed, 21 L. J. Q. B. 18).

I

specifically

Where an objection exists either to the charge of the Judge, or the reWhen obje ception of evidence, or as to any other matter, the objection should be taken tion should at the time (Ball v. Mannin, 3 Bligh, N. S. 22, Sm. & Batty, 454, 462; The be taken. Queen v. O'Connell, 7 Ir. L. R. 261, 332). Thus, where a party is dissatisfied with the Judge's charge, he should, at its close, state his objections; and it is not sufficient to state a general dissent, but the question sought to be left to the jury should be specifically stated, and the Judge should be requested to leave Should be the matter to the jury in the manner required (M'Guinness v. Hunter, 6 Ir. stated. Jur. O. S. 103; Hanks v. Cribbin, 7 Ir. C. L. R. 489; Blackwood v. Gregg, Hayes, 277). So, also, if a party object to a charge on the ground of ambiguity, the ambiguity should be distinctly pointed out, and the Judge called upon to clear it up, Ball v. Mannin (Sm. & Batty, 454, 462; 3 Bligh, N. S. 22). Again, the refusal of a Judge to withdraw from the consideration of the jury, evidence not objected to at the time of its reception, is not the ground of an exception (Sedley v. M'Gowan, 7 Ir. C. L. R. 427); and where upon the trial of a cause certain evidence was admitted, subject to objection, and exceptions were subsequently taken to other rulings of the Juage, but not to the admission of the evidence in question, the party, so excepting was held to have waived his objection to the evidence (Sedley v. M'Gowan, 8 Ir. C. L. R. 343).

made before

verdict.

The objection must be made at the trial, before the verdict is given (Culley Must be v. Doe, 11 A. & E. 1013; Armstrong v. Lewis, 4 M. & Sc. 1. The substance of it should be reduced into writing at the time it is tendered, although the bill of exceptions need not then be drawn up in form: the writing so tendered is called a dominical. When objections were taken to the Judge's charge, and overruled, and the Judge gave time to have the exceptions reduced into writing, but the dominical was not tendered until after the jury were discharged, it was held that the Court could not hear the exceptions (Close v. Batt, 1 Ir. Jur. O. S. 256).

Settling bill

When the exceptions have been taken, and the dominical properly tendered, of exceptions the next step is to settle the bill. In theory, indeed, the bill of exceptions is supposed to be complete, even before the verdict is handed in by the jury (Thelwall v. Yelverton, 14 Ir. C. L. R. 188, 212, 213, per Christian, J.) In practice, however, the exceptions are always settled after the trial. The manner of settling them is provided for by the General Orders of 1854, 84-86 (which see). The party excepting is bound to furnish a draft of the bill of exceptions to the opposite party, accompanied by a notice calling on him to return the same in four days settled on his behalf. The time within which this is to be done is prescribed by the 84th General Order (which see, and the cases referred to there). On the expiration of four days from the furnishing of the draft, whether it be returned or not, the party excepting should issue a summons to settle the bill before the Judge who tried the cause, and the bill will then be settled and signed by the Judge. Within two days after it is settled, the party excepting is to file the bill of exceptions, and proceed to make up the paper books for the Judges, and set down the case for argument in the same manner as directed by the 50th General Order with reference to demurrer books. The books are to contain the abstract for Nisi Prius and bill of exceptions, with the names of the counsel and attorneys on both sides, and are to be made out in the same form and manner as demurrer books.

How set down for argument

What books should contain.

Parties concluded by biil

When the party excepting is guilty of delay in settling the bill of exceptions, the opposite party cannot issue a summons to settle, but must apply to the Court or a Judge for leave to serve a notice on the exceptant to proceed to settle, or else that judginent will be marked (Kilroy v. The Midland Great Western Railway Co., 4 Ir. C. L. R. 252).

The bill of exceptions should contain what the Judge did, what he was required to do, and what he refused to do (Ward v. Freeman, 2 Ir. C. L. R. 460, 520, per Monahan, C. J.). It will, therefore, be insufficient, if it merely states what direction the Judge refused to give, without also stating what direction he actually gave (Anderson v. Fitzgerald, 4 H. L. Cas. 484; Malcolmson v. Morton, 11 Ir. L. R. 230). So, also, the question which the party required the Judge to leave to the jury should be stated (Hanks V. Cribbin, 7 Ir. C. L. R. 489. Where a variance was relied on, it was held that the variance should be specifically stated (Maunsell v. Russel, 2 Ir. L. R. 205, n.). It is not necessary to set out all the evidence; so much of it only should be set out as is requisite to make the exception intelligible (Watson v. Clooney, 1 Ir. C. L. R. 58, 62). The finding of the jury on any collateral issues left to them should not, it would seem, be inserted in the bill of exceptions (Thelwall v. Yelverton, 14 Ir. C. L. R. 188); nor ought distinct exceptions to different parts of a Judge's charge be allowed (Strong v. Kean, 13 Ir. L. R. 93).

On the argument of a bill of exceptions, both parties are concluded by it as to the truth of the matters contained in it, and the Court cannot go behind it to ascertain what the objection made at the trial really was (Whaley v. Carlisle, 17 Ir. C. L. R. 792). The exceptions themselves ought to be clear, and leave no doubt as to what was done. The Court will, however, view them with reference to the subject matter, and when it appears that the Judge was sufficiently apprised of what the parties intended by the exceptions, will not scan the wording of them too narrowly (Clooney v. Watson, 2 Ir. C. L. R. 129, 135, per Pigot, C. B.); and they will not, accordingly, be

construed with the same degree of rigour as if they were the subject of a special demurrer (Rhodes v. Hunter, 2 Huds. & Br. 581, 589, 590; Quin v. The National Assurance Co., Jon. & Car. 316, 366; Burris v. Coffey, 6 Ir. L. R. 298, 314). In Butler v. Mountgarrett, 6 Ir. C. L. R. 77, an exception, which objected to the admission of two letters in evidence, was held to be too wide, as one of the letters was admissible.

ment.

The exceptions, as before stated, are, under the 28th Geo. 3, c. 31, S. I, Power of examinable in the Court in which the action is brought. The object of that. Court in Act, however, as clearly expressed in the preamble, is confined to enabling giving judgthe Court to examine the exceptions without obliging the party to bring a writ of error; and accordingly the Court has no authority to proceed upon any other rule or ground of decision than that according to which the Court of Error formerly acted (Trimbleston v. Kemmis, 9 C. & F. 749). The Court, therefore, has no power under the statute in question, to select any particular portion of the evidence set forth in the bill of exceptions, and to allow or disallow the exception upon arguments built upon such portions of the evidence so selected; it is for the party himself to make his objections at the trial, and he is bound by the particular exception he has tendered, and can rely upon no other (Trimbleston v. Kemmis, ubi supra, Quin v. National Assurance Co., Jon. & Car. 316, 380). If the Court allows the exceptions, there must be a venire de novo. It has indeed been Venire de considered in some cases that the Court, upon allowing the exception, may, under the statute 28th Geo. 3, c. 31, order judgment to be entered up for the exceptant. If such a power does, however, exist, it is only in a strong case, as for instance, where there is a conclusion of law arising upon the evidence, that the power can be exercised (Fawcett v. Hall, Alc. & Nap., 248; Orr v. Stephenson, 5 Ir. L. R. 2; Bell v. Nangle, 1 Jebb & Sym. 199). It was at one time the practice in this country, upon allowing the exceptions, to award a new trial, by a mere rule or order, in place of awarding a venire de novo. The consequence was, that the unsuccessful Error lies on party was debarred from bringing error. In the case of The Bank of Ire- judgment.

land v. Evans' Charities, 5 H. L. C. 389, however (where the whole subject was elaborately discussed), it was held by the House of Lords that the practice was erroneous, and accordingly the practice now is to award a venire de novo, on which award error may at once be brought. 19 & 20 Vict., c. 102, 8. 49.

When a bill of exceptions is brought into a Court of Error, after having been adjudicated upon in the Court below, the Court of Error, the whole record being there, will decide upon every question of law arising thereon (Carlisle v. Whaley, L. R. 2 H. L. 391; Ward v. Freeman, 2 Ir. C. L. R. 460, 474).

As to the costs upon a bill of exceptions, see Bell v. Potts, 5 East, 49, 19 & 20 Vict., c. 102, 8. 49.

novo.

With respect to the form and manner of entering judg- Judgment.

ment :

not to be

122. No judgment shall be arrested or stayed or re- Judgment versed by reason of any imperfection, omission, defect in or arrested on lack of form (b) in any summons and plaint, defence, or other technical pleading or proceeding, nor by reason that the venue is mis- 15 & 16 Vict. placed, or the trial had in a wrong county or place (c), nor

grounds.

c. 76, s. 50.

by reason of any misnomer of any of the jurors who tried the case in name, surname, or addition, so as it appear to the Court to be the same man that was meant to be returned, nor by reason that the plaintiff or defendant, being under the age of twenty-one years, did sue or defend by attorney (d).

(b) See s. 31, ante, where the same words are used. Where, in an action for the loss of luggage against two defendants as common carriers, it appeared that one of the defendants was in no respect identified with the transaction, and a verdict was consequently directed in his favour, it was held, upon a motion in arrest of judgment, that although the action was partly in form ex contractu, yet, inasmuch as the substantial cause of action was the breach of an implied duty, the suit was maintainable against the other defendant (Keys v. Belfast & Ballymena Railway Co., 8 Ir. C. L. R. 167). (c) It was doubted whether such a defect was cured under the old statutes of jeofails (Heywood v. Reynolds, 6 Ir. L. R. 1). As to the consequence of a wrong venue, see ante, p. 59, note (s), and M'Mahon v. Leonard, 4 Ir. C. L. R. 16.

C. L. 457.

(d) See ante, p. 48, note (b), and Green v. Leclerc, Ir. R. 123. It shall not be necessary, before issuing execution upon any judgment under the authority of this Act, to enter the proceedings upon any roll, but on producing, and lodging with the proper officer, a certificate of the name, description, and address of the parties, an entry shall be made in the Judgment Book, signed by the Master, shortly stating the nature of the judgment, and thereupon the costs shall be taxed, and execution issued, according to the practice heretofore used, and the effect of every such entry of a judgment shall be the same as that of a judgment in an action in the form heretofore used; and such entry in the said Judgment Book shall contain a reference to the number of the roll on which such judgment shall be enrolled, and shall contain a column in which any satisfaction of the said judgment may be afterwards entered, if necessary (e).

(e) Judgment cannot be marked in cases where a verdict or nonsuit is obtained out of Term, until after the expiration of fourteen days. When obtained in Term, it may be marked in four days. Sec. 127, post. As to judgment by default, see ss. 96-101, ante.

The practice as to marking judgment will be found discussed in Scott v. Bennett, Ir. R. 3 C. L. 217.

The judgment is to be considered as marked when the entry is made in the judgment book, even though the costs are not taxed, and it carries interest from that date (Fisher v. Dudding, 9 Dowl. 872; Frewen v. Lethbridge, 7 W. R. 442). The entry of judgment is not, however, final till the costs have been taxed (Pierce v. Derry, 4 Q. B. 635). The plaintiff may, however, at once issue execution without waiting to tax his costs, but by so doing he waives his right to them (Barnet v. Heron, 8 Ir. C. L. R. Ap. 19).