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CHAPTER VII.-General provisions relating to trials.*

ARTICLE I.

EXCEPTIONS.

Sec. 188. An exception, what is; what exception may be diste

garded. 189. The point of exception shall be particularly stated, etc. 190. No particular form required. 191. When deemed excepted to.

§ 188. An exception, what is; what exceptions may be disregarded.

An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, Court or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect the substantial rights of the parties.

1. A statement and bill of exceptions in the statute, on the subject of appeal, mean the same thing. People v. Lee, 14 Cal. 510.

2. The sole object of a bill of exceptions is to make a record of the special action of the Court of what is not record by the general law. But that which is of record already, cannot receive any higher degree of sanction by being made record a second time. Parsons y. Davis, 3 Cal. 425.

3. Exceptions must be taken during the trial.-Exceptions must be taken to the rulings of the referee during the trial and certified by him. Tyson v. Wells, 2 Cal. 122.

4. There is nothing in the statute which requires that exception to depositions shall be filed before the time of trial. The objection can be made at any time before they are read in evidence. Dye v. Bailey, 2 Cal. 384.

5. Objections to the form of a deed must be made on the trial at nisi prius. Porter v. Rassette, 5 Cal. 468.

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STATUTES OF 1861, p. 589.-CHAPTER DXXII. “Sec. 4. During the progress of a cause, a party may take his bill of exceptions to the admission or exclusion of testimony, or to the rulings of the Judge on pojuts of law, and it shall not be necessary to embody in such bill anything more than sufficient facts to show the point and pertinency of the exception taken; the presiding Judge shall sign the same, as the truth of the case may be, which bill shall then become a part of the record; and a party, against whom judgment is rendered, may appeal from such judgment without any further statement or motion; and on such appeal, it shall only be necessary to bring to the Supreme Court the transcript of the pleadiugs, and the judgment, and the bill or bills of exception so taken."

6. Objections to the introduction of evidence must be taken on the trial below; they cannot be taken for the first time in the appellate Court. Covillaud v. Turner, 7 Cal. 38.

7. A party cannot, by consenting to admit evidence, “subject to all legal exceptions,” absolve himself from the necessity of taking exceptions to the relevancy or sufficiency thereof, and devolve the responsibility of discovering whatever objections may exist on the Court below, and, after fishing for a verdict, for the first time assign his objections in the Supreme Court. Id.

8. A party cannot take his chances for a verdict on instructions given or refused without exceptions taken, and then after verdict except to the action of the Court upon motion for new trial. Sutter v. Putney, 7 Cal. 423.

9. If exceptions to the rulings below be not taken at the time, they cannot be arged on appeal. McCartney v. Fitz Henry, 16 Cal. 186.

§ 189. The point of exception shall be particularly stated, etc. The point of the exception shall be particularly stated, and may

Amendment to Sec. 189.Passed April 20th, 1863.

[Takes effect sixty days after parrage.] $ 189. The point of the exception shall be particularly stated, and may be delivered in writing to the Judge; or, if the party require, it shall be written down by the Clerk. When delivered in writing, or written down by the Clerk, it shall be made conformable to the truth, or be at the time corrected, until it is so made conformable. When not delivered in writing, or written down as above, it may be entered in the Judge's minutes, and afterwards settled in a statement of the case, as provided in this Act: provided, that if the Judge shall, in any case, refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the Supreme Court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the Supreme Court may, by rules, impose.

$ 190. No particular form required.

No particular form of exception shall be required. The objection shall be stated, with so much of the evidence or other matter as is necessary to explain it, but no more ; and the whole as briefly as possible.

CHAPTER VII.- General provisions relating to trials.*

ARTICLE I.

EXCEPTIONS.

Sec. 188. An exception, what is ; what exception may be disre

garded. 189. The point of exception shall be particularly stated, etc. 190. No particular form required. 191 When deemed excepted to.

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STATUTES OF 1861, p. 589.- CHAPTER DXXII. “ SEC. 4. During the progress of a cause, a party may take his bill of exceptions to the admission or exclusion of testimony, or to the rulings of the Judge on points of law, and it shall not be necessary to embody in such bill anything more thiau suthcient facts to show the point and pertinency of the exception taken; the presiding Judge shall sign the same, as the truth of the case may be, which bill shall'then become a part of the record; and party, against whom judgment is rendered, may appeal from such judgment without any further statement or motion; and on such appea), it shall only be necessary to bring to the Supreme Court the transcript of the pleadings, and the judgment, and the bill or bills of exception so taken."

6. Objections to the introduction of evidence must be taken on the trial below; they cannot be taken for the first time in the appellate Court. Covillaud v. Turner, 7 Cal. 38.

7. A party cannot, by consenting to admit evidence, “subject to all legal exceptions,” absolve himself from the necessity of taking exceptions to the relevancy or sufficiency thereof, and devolve the responsibility of discovering whatever objections may exist on the Court below, and, after fishing for a verdict, for the first time assign his objections in the Supreme Court. Id.

8. A party cannot take his chances for a verdict on instructions given or refused without exceptions taken, and then after verdict except to the action of the Court upon motion for new trial. Sutter v. Putney, 7 Cal. 423.

9. If exceptions to the rulings below be not taken at the time, they cannot be arged on appeal. McCartney v. Fitz Henry, 16 Cal. 186.

§ 189. The point of exception shall be particularly stated, etc.

The point of the exception shall be particularly stated, and may be delivered in writing to the Judge, or if the party require it, shall be written down by the Clerk; when delivered in writing, or written down by the Clerk, it shall be made conformable to the truth, or be at the time corrected, until it is so made conformable. When not delivered in writing, or written down as above, it may be entered in the Judge's minutes, and afterwards settled in a statement of the case, as provided in this act.

1. Exceptions to be written down by the Clerk.-Where the parties have not made a case nor a bill of exceptions, but have relied upon the testimony taken down by the Clerk, pursuant to section two hundred and seventy-one of the Practice Act of 1850, no question can be raised, on appeal, respecting the decisions of the Court below during the progress of the trial. The case of Gunter v. Geary, (ante, 462) affirmed in this respect. Price v. Minturn, 1 Cal. 470.

2. If a party desires to bring the rulings of the District Judge, during the progress of the trial, under review, he must either make out a statement of facts, pursuant to section two hundred and seventy-two of the Practice Act of 1850, or a bill of exceptions, pursuant to sections two hundred and eighty-seven and two hundred and eighty-eight. This Court will not examine into the correctness of the decisions of the District Judge, where it has been left to the Clerk of the District Court to ascertain and settle what such decisions were. Gunter v. Geary, 1 Cal. 462.

3. A mere transcript of the evidence taken down by the Clerk is no part of the record, unless made so by bill of exceptions. Wilson v. Middleton, 2 Cal. 54.

4. Where, under the two hundred and seventy-first section of the Act to Regulate Proceedings in Civil Cases, the evidence is taken down by the Clerk in the Court below, on motion of a party, a transcript of it certified by him is a substitute for a bill of exceptions or statement of facts, in the absence of such bill or statement. Decisions contravening the plain letter of the statute are not binding as authority. Ingraham v. Gildermester, 2 Cal. 161.

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$ 190. No particular form required.

No particular form of exception shall be required. The objection shall be stated, with so much of the evidence or other matter as is necessary to explain it, but no more ; and the whole as briefly as possible.

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1. Exception, sufficiency of.-A general objection to the admissibility of evidence is insufficient. People v. Apple, 7 Cal. 290; Kiler v. Kimball, 12 Id. 268; Martin v. Traverse, 12 Id. 245.

2. Where the objection to impeaching evidence was general, and the Court ex. cluded the testimony without assigning any reason, the Supreme Court will presume in favor of the correctness of the action of the Court below; and the appellant must show error to his prejudice, by putting his exceptions in the proper shape. Baker v. Joseph, 16 Cal. 177.

3. Where error is alleged in the exclusion of testimony, it must clearly appear on the face of the exception that the testimony was, not that possibly it might have been, relevant. Cohn v. Muljord, 15 Cal. 50.

4. An exception, showing that the Court ruled out the proffered statements of the vendor of personal property, subsequent to his sale, without showing what the statements were, is insufficient. The exception must show the statements to have some pertinency to the matters in issue. Id.

5. Where a party objects to the admission of testimony on trial, he must state the point of his objection at the time. General objection will not do. The party should lay his finger on the point at the time of trial, otherwise this Court cannot review it. Martin v. Traverse, 12 Cal. 243.

6. Where an exception is taken to the decision of a Court refusing a nonsuit, it devolves upon the plaintiff, on the settlement of the bill, to see that all the evidence material for him in sustaining the decision complained of is inserted in the bill of exceptions.—Per Bennett, J. Ringgold v. Haven, 1 Cal. 108.

7. An exception, in general terms, to the whole of a charge, which embraces more than one point, is insufficient. Robinson v. N. Y. & Erie R. R. Co., 27 Barb. 512; The East River Bank v. Gedney, 4 E. D. Smith's C. P. R. 582; Car. land v. Day, 4 Id. 251.

8. Where the charge or ruling consists of a single proposition, an exception to it generally is sufficiently specific. Requa v. Holmes, 16 N. Y. (2 E. P. Smith's) R. 193, 201.

9. But an exception to a ruling admitting the reading of certain proceedings as evidence is not sufficient, if founded on an objection which did not specify the ground of the objection, and the evidence was such that any part of it, if offered separately, would have been competent. Id.

10. Where an interrogatory contains several questions, an objection that it is answered only in part is too general. The questions which are not answered must be pointed out. Walton v. The National Fund Life Assurance Co., 20 N. Y. (6 Smith) 32.

11. An exception in these words: “ To that part of said decision which allows $3,342 as interest,” is a general exception to the allowance of interest at all; and no objection can be taken under it to the time for which interest is allowed. McMahon v. N. Y. f. Erie R. R. Co., 20 N. Y. (6 Smith) 463.

12. To the charge of the Court on the trial, assuming to decide a question of fact, the defendant excepted, on the single ground that the evidence did not war· rant the conclusion : Held, on appeal, that the objection which might have been

taken to the decision of a question of fact by the Court, was waived. (8 M. & W. 421 ; 2 Kern. 18); Cary v. Cleveland & Toledo R. R. Co., 29 Barb. 35, 41,

13. Where no ground for an exception is stated, it is always disregarded. Walton v. The National Fund Life Assurance Co., 20 N. Y. (6 Smith) 32.

14. When any allowance is appealed from as excessive, the excess, if it be of a definite amount, should be pointed out by the exceptions, so that the respondent may remit it, if he so elect. McMahon v. N. Y. f. Erie R. R. Co., (6 Smith) 463.

15. If there is but a single exception to a refusal to charge as requested, it can only be sustained by showing that every proposition requested is tenable. (1 Seld. 422; 2 Id. 233); Magee v. Badger, 30 Barb. 246.

16. No exception lies to a refusal to permit a demurrer to evidence. Colegrove v. New Haven f Harlam R. R. Co., 20 N. Y. (6 Smith) 492.

17. On the trial, defendant's counsel excepted to the refusal of the Court to restrain the remarks of plaintiff's counsel before the jury to the matters at issue and in evidence; but it did not appear that plaintiff's counsel subsequently made any remarks which he should not have been permitted to make; and in the charge the Court instructed the jury to lay out of view that which had previously been said : Held, that the exception would not avail as ground of new trial. Defendant

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