master to state the evidence that furnishes the ground of the exception, and if this is not done the court will not enter into an examination of the evidence at large to ascertain the correctness of the master's conclusion. Greene v. Bishop, 1 Cliff., 191.

§ 1848. In a suit in equity in the circuit court the matter was referred to a master. According to a rule of the court each party had a certain time to file exceptions thereto, and if exceptions were not filed the report was to be held conclusive. No exceptions were filed, but the circuit court disallowed a part of the master's findings. Held, that no exceptions being taken to the master's report, it is binding on the supreme court on appeal the same as on the court below, and cannot be questioned. Canal Company v. Gordon, 6 Wall., 568.

§ 1849. Where, in pursuance of the mandate of the supreme court, the circuit court refers a case to a master to take an account of rents and profits, and the master has followed the mandate of the supreme court and enforced its provisions, no objection can be taken on appeal to what he has done when the appeal arises on exceptions to his report. New Orleans v. Gaines, 15 Wall., 629.

§ 1850. Where a chancery suit involves matters of account, the action of a master should be had in the inferior court, and the items admitted or rejected should be stated, so that exceptions may be taken to the particular items or class of items, and such a case should be brought before the supreme court on the rulings of the court on these exceptions. Ransom v. Winn, 18 How., 297.

§ 1851. Where the report of the commissioner in a suit in equity was excepted to on the ground that it was contrary to the evidence, "and for other reasons to be stated more particularly at the hearing," and the record shows simply that the exception was overruled, the supreme court upon appeal will not presume that it was overruled on account of a defect or insufficiency in form, but that it was overruled on the merits as being contrary to the evidence. Withers v. Withers. 8 Pet., 359.

§ 1852. Instructions.- Where a series of propositions are presented to the court as a whole as instructions to the jury, and the court refuses them as a whole, and an exception is taken to such refusal, the judgment will not be reversed if one of the propositions was erroneous. Worthington v. Mason, 11 Otto, 149; Beaver v. Taylor, 3 Otto, 54; Rogers v. The Marshal, 1 Wall., 654; Harvey v. Tyler, 2 Wall., 338. See SS 1754-1756.

§ 1853. Exceptions to the charge of the court should not be general to the whole charge as given, but special to each of the points excepted to. Under the peculiar circumstances of this case, however, the writ of error was not dismissed, but the case was considered on its merits. Stimpson v. West Chester R'y Co., 4 How., 401.

§ 1854. Where no exceptions have been taken to the instructions given to the jury in the court below, the appellate court will presume that the law was correctly stated. Gove v. Moses,* 1 Wash. Ty., 15.

§ 1855. It seems that appellate courts will not consider exceptions to instructions which were not taken at the time they were given, or at least before the verdict, unless time has been given by the court. Cheatham v. Wilber,* 1 Dak. T., 347.

§ 1856. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variances, cannot be sustained. It is not the duty of a judge of the circuit court, or of an appellate court, to analyze and compare the requests and the charge to discover what are the portions thus objected to. One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it, and give new and different instructions to the jury, if, in his judgment, it would be proper to do so. Beaver v. Taylor, 3 Otto, 55.

§ 1857. When the instructions of the court have not complied with the prayers of either party, they are to be considered as refused, and exceptions will lie to the refusal of the court to give instructions requested in like manner as to instructions actually given. Emerson v. Hogg, 2 Blatch., 7.

§ 1858. Evidence.— An objection to the admission of a deed in evidence, which was not taken in the circuit court, will not be reviewed by the supreme court on writ of error. Springer v. United States, 12 Otto, 593. See § 1753.

1859. If the record does not show that an exception was taken below to a question asked upon the trial, an exception based thereon will not be considered by the supreme court upon a writ of error. Schuchardt v. Allens, 1 Wall., 367.

§ 1860. Where a question objected to was proper and pertinent, no objection to the answer will be considered if not taken in the court below. Rogers v. The Marshal, 1 Wall., 654.

§ 1861. Where no objection was made in the circuit court to the admission of a deed in evidence, no objection to its execution can be made in the supreme court on error. Stoddard v. Chambers, 2 How., 315.

§ 1862. Where no objection was taken in the court below to the admission of evidence under the general counts, which tended to show a special contract made by a corporation, an

objection that there is not legal proof of such contract comes too late in the appellate court. Chesapeake & Ohio Canal Co. v. Knapp, 9 Pet., 565.

§ 1863. The supreme court in an action of ejectment will not consider objections to documentary evidence of title not made in the court below; at least if they are of a kind which might have been there obviated. Houghton v. Jones, 1 Wall., 705.

§ 1864. In proceedings for the confirmation of Mexican grants, objections taken for the first time in the supreme court to the proof of authentication will not be considered. It is no part of the duty of the counsel for the government to urge microscopic objections to the claimant's title, or to enforce a forfeiture for the non-observance of some formality prescribed at common law. If there is any just suspicion of fraud or forgery, evidence to support the charge should appear on the record. United States v. Johnson, 1 Wall., 328.

§ 1865. In actions to confirm the title conferred by Mexican grants, if the preliminary proceedings are preserved in the government archives, the supreme court, upon appeal from the district court, will presume that the execution of the grant is sufficiently proved, where it is signed by the governor and secretary, unless objection is made to the sufficiency of the proof in one of the lower tribunals. United States v. Yorba, 1 Wall., 422.

§ 1866. In cases concerning Mexican grants, objections to the execution of documents relied on to support the title should be taken in the court below, or before the commissioners. They cannot be taken in the supreme court for the first time. United States v. Auguisola, 1 Wall., 357.

§ 1867. Where a party objects to the admission of evidence, and the objection is overruled, with an intimation that the point would be considered on a motion for a new trial, and no exception is taken, the appellate court will presume that the point is waived as a matter of error, and insisted on only as matter for a new trial. Poole v. Fleeger, 11 Pet., 211.

§ 1868. Where a discrepancy between the water mark in the paper and a document written thereon, which was offered in evidence to support a title, was not noticed at the hearing, nor commented upon by counsel in their arguments in the court below, such discrepancy will not be noticed by the supreme court, though commented upon at large by the judge of the court below in his opinion. Mitchell v. United States, 9 Pet., 731.

§ 1869. Although at the time of putting a question the opposite party objected, and said he excepted, the exception will not be noticed by the supreme court, but will be considered as abandoned, unless an exception is actually prayed by the party and signed by the judge. Scott v. Lloyd, 9 Pet., 442.

§ 1870. A defendant in error in the supreme court cannot take advantage of an alleged improper admission of a copy of a contract in evidence in the court below to which the plaintiff in error did, and he did not, except. Greenleaf v. Birth, 9 Pet., 296.

§ 1871. Where accounts were admitted in evidence in the circuit court, and form part of the record on a writ of error from the supreme court, they cannot be stricken from the record if no objection was taken to their admission in the court below. Hinde v. Longworth, 11 Wheat., 211.

§ 1872. Exceptions to the admission of evidence, although they need not be put into form and signed at the trial, but may be drawn out and signed within a time prescribed by the rules and practice of the court, yet, if not taken at the time of the trial, they are deemed to be waived. Poole v. Fleeger, 11 Pet., 211.

§ 1873. To render an exception available in the supreme court, it must affirmatively appear that the ruling excepted to affected or might have affected the decision of the case. If the exception is to the refusal of an interrogatory not objectionable in form, the record must show that the answer related to a material matter involved; or, if no answer was given, the record must show the offer of the party to prove by the witness particular facts, to which the interrogatory related, and that such facts were material. Railroad Company v. Smith, 21 Wall., 261.

1874. Nothing which occurred in the progress of the trial in the inferior court can be assigned for error in the supreme court which was not brought to the attention of the court, and decided by it. So where specific objections are made to the admission of evidence, the court has a right to presume that all others are waived, and proceed with the case accordingly. Belk v. Meagher, 14 Otto, 288. And where the only objection specified to the admission of a deed was that it was incompetent, immaterial and irrelevant, the objection that the attestation of the copy was insufficient cannot be considered by the appellate court. Wood v. Weimar, 14 Otto, 795.

§ 1875. It is the duty of a party excepting to evidence to point out the part excepted to, so that the attention of the court may be drawn to it. So where testimony was taken under a commission, and on its production in court at the trial objections were taken to its competency and relevancy, but were general and indefinite, and did not point out the portions objected to except in gross, and the parts so pointed out contained competent and relevant 1089

VOL. II-12

testimony, it was held by the supreme court that the objections were properly overruled. United States v. McMasters, 4 Wall., 682.

§ 1876. It is the duty of a party taking exceptions to the admissibility of evidence to point out the part excepted to, when the evidence consists of a number of particulars, so that the attention of the court may be drawn to the particular objection. Where, in such case, the exception is taken generally, if any of the matter is admissible the objection must be overruled. Moore v. Bank of Metropolis, 13 Pet., 310.

§ 1877. And if he assign no grounds for his exception, the mere objection cannot avail him in the appellate court. Burton v. Driggs, 20 Wall., 133.

§ 1878. The appellate court, in its examination of the admissibility of evidence, ought to confine the parties to the specific objections taken by them in the court below. If the attention of the trial court is called to the testimony in one point of view only, to admit inquiry afterwards whether the evidence might not have been admissible for some other purpose would be to sanction a practice calculated to mislead. Hinde v. Longworth, 11 Wheat., 209. § 1879. It is incumbent upon a party excepting to the admission of evidence to make out the error of the court clearly and satisfactorily. All reasonable intendments should be made in favor of the judgment, and where the exception is so vague and unintelligible that the supreme court cannot see clearly that the testimony was incompetent, the judgment will not be reversed. Ventress v. Smith, 10 Pet., 170. See § 1722.

2. Bill of Exceptions.

SUMMARY - How error may be shown, § 1880.- Error apparent on the record, §§ 1881, 1890.- Report of evidence signed by the judge, § 1882.- Turning case into special verdict, § 1883.- No error on the record, §§ 1884, 1894.- Actions at law, 1885. — Instructions,* § 1886.— Appeals in admiralty, § 1887.— As to findings by the court, § 1888. — Should not raise questions of fact, § 1889.- Case not dismissed for want of, § 1890. — Objections to evidence, § 1891.- Certificate of clerk in lieu of, § 1892.- Depositions and affidavits, § 1893.— Objections on an inquisition of damages, § 1895.- Paper, how incorporated, 1896.— Memoranda by the clerk; exceptions must be signed and sealed, § 1897.- Ruling on demurrer, § 1898.- Grounds on which a motion was made or denied, § 1899.- Error as to time of taking an exception, § 1900.- Presumption where evidence is rejected, § 1901.- Cases tried without a jury, § 1902.— Need not be sealed, § 1903.— Not purporting to give all the evidence, § 1904.- Filed nunc pro tunc, § 1905 – Time of taking and filing, §§ 1905–1909, 1912, 1913, 1916.- Form of bills, $S 1910, 1911.- Filed after allowance of writ of error. § 1914.Not governed by state laws, § 1915.- Time of filing in admiralty, § 1916.

§ 1880. To authorize a review on writ of error, the error must be apparent of record, and is usually shown by bill of exceptions, special verdict, or an agreed statement of facts. (The various methods by which error may be shown, the nature of a special verdict, etc., discussed.) Suydam v. Williamson, §§ 1917-1930. See § 1986.

§ 1881. Whenever error is apparent on the record, it is open to revision, whether it be made to appear by bill of exceptions, or in any other manner. Ibid.

§ 1882. A report of the evidence incorporated into the transcript, and signed by the judge, is not a bill of exceptions, agreed statement of facts, or special verdict, and will not be considered by the supreme court. lbid.

§ 1883. A case cannot be turned into a special verdict without leave of court. Ibid.

§ 1884. On writ of error to a federal court, if there are no errors in the record the judgment will be affirmed. (Of the practice on writs to state courts.) Ibid.

§ 1885. An action at law will not be reviewed on writ of error where there is no bill of exceptions, and no point as to the admissibility of the evidence is raised, though the whole of the evidence appears in the record. The practice does not differ in cases brought up from Louisiana. Minor v. Tillotson, § 1931.

§ 1886. With no issue made directly by the pleadings, and no evidence set forth or referred to in the bill of exceptions showing the materiality of the charge complained of, the case presents only an abstract proposition of law which may or may not have been in a way injurious to the plaintiff in error. Jones v. Buckell, §§ 1932, 1933. See § 2061.

§ 1887. Congress has the constitutional power to confine the jurisdiction of the supreme court on appeals in admiralty to questions of law arising on the record, and the act of February 16, 1875, c. 77, is, therefore, constitutional. The Francis Wright, §§ 1934-1937.

§ 1888. If the court refuses to make a finding on a material question of fact, when evidence has been introduced on the subject, or proceeds to find, against remonstrance, a material fact which is not supported by any evidence whatever, and an exception is taken, a

bill of exceptions may be used to bring the ruling up for review. But the rule does not apply to mere incidental facts, which only amount to evidence bearing upon the ultimate facts of the case. Ibid.

§ 1889. A bill of exceptions should not be framed with a view to securing a re-examination of the facts. It should state and point out distinctly the errors complained of, and ought also to show the grounds relied on to sustain the objection presented, so that it may appear that the court below was properly informed as to the point to be decided. Ibid.

§ 1890. A writ of error will not be dismissed on motion for want of a bill of exceptions; the party may show that there is error in the record. Minor v. Tillotson, § 1938. See § 2012. § 1891. An objection to the sufficiency of the evidence must be made below; and where the court below finds the facts, the sufficiency of the evidence cannot be questioned in the supreme court, unless upon a bill of exceptions properly taken. Cucullu v. Emmerling, § 1939.

§ 1892. On writ of error to a state court, the certificate of the clerk that certain papers were offered in evidence, and the statement of counsel upon a motion for a new trial that certain instructions were refused, will not be received in lieu of a bill of exceptions. These facts should be authenticated by the court. Reed v. Marsh, §§ 1940, 1941. See § 1975, 1986. § 1893. Neither depositions nor affidavits, though appearing in the transcript of a common law court of errors, can ever be regarded as a part of the record, unless the same are embodied in an agreed statement of facts, or are made so by a demurrer to the evidence, or are exhibited in a bill of exceptions. Baltimore, etc., R. Co. v. Trustees, §§ 1942-1946.

§ 1894. Though a writ of error removes the judgment for re-examination, yet if the transcript does not show that any error exists in the record, the judgment must in all cases be affirmed, except where it appears that there has been a mis-trial. Ibid.

§ 1895. It seems that objections taken on an inquisition of damages may be saved by a bill of exceptions. Ibid.

§ 1896. A paper does not become a part of a bill of exceptions by being attached to a pleading; where a paper is not incorporated into the body of a bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions. Leftwitch v. Lecanu, § 1947.

§ 1897. Mere memoranda on the minutes of the clerk, to the effect that certain proceedings were had, and that the parties excepted, cannot be used in place of a bill of exceptions; to be of any avail, exceptions must not only be drawn up so as to present distinctly the rulings of the court, but they must be signed and sealed by the presiding judge. Young v. Martin, $ 1948-1950. See SS 1978, 2032.

§ 1898. The ruling of the court on a demurrer may be saved by incorporating the demurrer into the record. Ibid.

§ 1899. The grounds on which a motion was made or denied must be shown by the record. Ibid.

§ 1900. It is not material that an exception appears to have been taken a year before the trial, where the title and the certificate show that it was taken at the trial. United States v. Wilkinson, 1951-1953.

§ 1901. Where a document is shown by the exception to be admissible in evidence, the presumption is against the action of the court in rejecting it; the grounds on which it was rejected should be shown. Ibid.

§ 1902. The act of March 3, 1865, providing for a review on bill of exceptions of cases tried without a jury, is general in its terms, and applies to the district of Louisiana. Generes v. Campbell, §§ 1954-1956.

§ 1903. A bill of exceptions need not be sealed by the judge; his signature is sufficient. Ibid. See § 2032.

§ 1904. Where the bill of exceptions does not purport to give all the evidence to which the exception relates, and the reasons for the decision do not appear in the record, the supreme court will not revise. Ibid.

§ 1905. Where exceptions were properly taken at the time, but the bill of exceptions was not prepared before the adjournment of the court for the term, and at the next term of the court an order was made directing that the bill of exceptions be filed as of the date of the trial, held, that the bill could not be treated as a part of the record. Müller v. Ehlers, S$ 1957, 1958. See §§ 1991, 1998, 2005.

§ 1906. The exception must show that it was taken and reserved by the party at the trial, but it may be drawn out in form and sealed by the judge afterwards. The time within which it may be drawn out and presented to the court must depend on its rules and practice, and on its own judicial discretion; and the matter cannot be regulated by a state statute, unless the statute be adopted as a rule of court. United States v. Breitling, §§ 1959–1961.

1907. It is not sufficient merely to object to evidence or instructions; it must appear that the party excepted to the ruling of the court. Ibid.

§ 1908. It must appear from the record that instructions were excepted to while the jury were at the bar; the exception need not be drawn out in form and signed before the jury retire, but it must be taken in open court, and must appear by the certificate of the judge that it was so taken. Phelps v. Mayer, § 1962, 1963. See § 1994. § 1909. The bill of exceptions must show that exceptions were taken at the time, and that they were persisted in as exceptions. A statement drawn up and signed by the judge, purporting to be a report of the facts and rulings in the case, with no exceptions noted, is not sufficient. United States v. Jarvis, §§ 1964-1967. See §§ 1769, 1976.

§ 1910. Congress having prescribed no form for a bill of exceptions, the form in use under the statute of Westminster 2d is to be followed. Ibid. See § 1988.

§ 1911. It is not material in what part of the record the exceptions are set out, or the signature or seal is affixed, if they only appear, and so appear as to cover and authenticate the exceptions. Ibid.

§ 1912. Where exceptions were taken at the trial, but no steps were taken toward settling and signing a bill of exceptions until after the lapse of more than two years, the case being then pending in the supreme court on writ of error, the court refused to sign and file a bill of exceptions. Herbert v. Butler, § 1968.

§ 1913. The poverty of the plaintiff, and his consequent inability to employ counsel, is not a sufficient excuse for failure to file a bill of exceptions in time. Whalen v. Sheridan, §§ 19691971.

§ 1914. Quære: whether the lower court can permit a bill of exceptions to be filed after the allowance of a writ of error. Ibid.

§ 1915. Section 904, Rev. Stat., only assimilates the practice in the federal courts to that of the state courts "as near as may be;" and it is held that the system of review on writ of error is so far a different system of procedure, established by a statute of the United States, that the provisions of the state statutes do not in any respect govern proceedings under it. Ibid. § 1916. In an admiralty proceeding in rem, a bill of exceptions will not be signed unless the exceptions are taken before the final decree is entered. The Havre, § 1972. [NOTES.

See §§ 1973-2076.]

SUYDAM v. WILLIAMSON.

(20 Howard, 427-442. 1857.)

Opinion by MR. JUSTICE CLIFFord.

STATEMENT OF FACTS.- This was a writ of error to the circuit court of the United States for the southern district of New York.

The view we have taken of this case, as it is exhibited in the record, renders an extended statement of the facts entirely unnecessary. It was an action of ejectment brought in the court below to recover the possession of a certain parcel of land, with the appurtenances, situated in the sixteenth ward of the city of New York, and described as lots sixty-four and sixty-five, according to a certain map made by George B. Smith. The declaration, which was in the usual form, was filed in the circuit court for the southern district of New York on the 15th day of August, 1845, and the defendant, James H. Suydam, appeared, by his attorney, and pleaded that he was not guilty of unlawfully withholding the premises claimed by the plaintiffs, as was alleged in the declaration, and tendered an issue, which was duly joined by the plaintiffs. During the pendency of the suit, and before the trial, two of the plaintiffs, being the two first named in the declaration, died, and the cause was regularly revived in the name of the survivors and the heirs of those deceased. At the adjourned session of the circuit court, held at the city of New York on the first Monday of October, 1849, the parties went to trial on the general issue, and the jury returned a general verdict in favor of the plaintiffs; after the verdict, the cause was continued, as the record states, until the first Monday of October, 1850, and "the same day is given to the parties to hear the judgment of the court," and on that day the judgment was rendered on