99, 182 Fed. 561; Franklin County v. Furry, 75 C. C. A. 465, 144 Fed. 664; Southern P. Co. v. Johnson, 16 C. C. A. 317, 44 U. S. App. 1, 69 Fed. 562, and cases cited; United States v. Jones, 149 U. S. 262, 37 L. ed. 726, 13 Sup. Ct. Rep. 840; Scaife v. Western North Carolina Land Co. 30 C. C. A. 661, 59 U. S. App. 28, 87 Fed. 310; Russo-Chinese Bank v. National Bank, 109 C. C. A. 398, 187 Fed. 86; Oxford & C. L. R. Co. v. Union Bank, 82 C. C. A. 609, 153 Fed. 723. See Seattle v. Methodist Protestant Church, 70 C. C. A. 597, 138 Fed. 309, 310. Time cannot be extended by order in vacation. Missouri, K. & T. R. Co. v. Russell, 9 C. C. A. 108, 19 U. S. App. 641, 60 Fed. 503.

Trial Judge Must Sign Bill.

We have just seen that section 953, U. S. Comp. Stat. 1901, p. 696, requires the bill of exceptions to be authenticated by the trial judge if not disabled by death, sickness, or other disability, for which event provision has been made. When the bill is properly presented by the plaintiff in error and allowed by the judge, the judge must sign it. Cavazos v. Trevino, 6 Wall. 773, 18 L. ed. 813; Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 371, and cases cited. His name, and not initials, must be signed. Origet v. United States, 125 U. S. 240, 31 L. ed. 743, 8 Sup. Ct. Rep. 846.

Should the judge refuse to sign during the term, mandamus will be granted requiring him to settle the bill and sign it. Scaife v. Western North Carolina Land Co. 30 C. C. A. 661, 59 U. S. App. 28, 87 Fed. 308.

Where extraordinary circumstances prevent the signing of the bill within the term, it creates an exception to the general rule. Michigan Ins. Bank v. Eldred, 143 U. S. 298, 36 L. ed. 163, 12 Sup. Ct. Rep. 450; Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co. 81 C. C. A. 76, 151 Fed. 468, and cases cited; Dalton v. Gunnison, 91 C. C. A. 457, 165 Fed. 873; Scaife v. Western North Carolina Land Co. 30 C. C. A. 661, 59 U. S. App. 28, 87 Fed. 308; Western Dredging & Improv. Co. v. Heldmaier, 53 C. C. A. 625, 116 Fed. 179; Bidwell v. Amsinck, 92 C. C. A. 432, 166 Fed. 752.

The signature of the judge to orders allowing and settling the exceptions taken during the progress of the trial is not a signing as contemplated; the entire bill when settled must be signed. Dalton v. Hazelet, 105 C. C. A. 99, 182 Fed. 561.

Everything contained in the bill must be certified by the judge's signature. Jones v. Buckell, 104 U. S. 554, 26 L. ed.

841.

What the Bill of Exceptions Should Contain.

Keeping in mind that exceptions raise only questions of law, and that its purpose is to preserve in intelligent form objections made as to the pleadings, evidence, charges, or any other objections raising a legal issue during the progress of the trial, it is indispensable that each exception taken should distinctly state and point out the error relied upon, both as to the matter excepted to and the point reserved; in a word, it must contain within itself a case with a defined issue, and not so framed as to require an examination, by the court, of the entire case to see the error complained of. Rule 10, all circuits (see post, 271); Rule 4, Supreme Court (see post, 242). The Francis Wright, 105 U. S. 381-389, 26 L. ed. 1100-1102; Marion Phosphate Co. v. Cummer, 9 C. C. A. 279, 13 U. S. App. 604, 60 Fed. 873. It must affirmatively appear that the several exceptions in the bill were taken at the trial, and at the time the objection was made, and that the bill was authenticated after the trial by the judge, during the term, unless it appears the time was extended by the judge. In United States v. Carey, 110 U. S. 51, 28 L. ed. 67, 3 Sup. Ct. Rep. 424, it is said that an exception, to be of any avail, must be taken at the trial, but may be reduced to form and signed afterwards. Each exception must state a. case, that is, the point of law and the evidence upon which it is based, or if to the admission or rejection of evidence, it must state the substance of the evidence offered and admitted or rejected, and the legal objection made. It must appear that the court below was fully informed as to the point decided. Having seen, then, that each exception should raise a definite point of law, whether it be to the pleadings, charge, or evidence, and that it is only a challenge on some point of law that can invoke the revisory power of an appellate court, let us take up first

ARY

Exceptions to Charges.

(See also chapter 15, discussing charges and exceptions.) By all circuits rule 10 (see post 271) and Supreme Court rule 4 (see post, 242), it is provided that the judges of the district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury upon any general exception to the whole of said charge, but the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts, and those only shall be inserted in the bill of exceptions and allowed by the court. Morning Journal Asso. v. Rutherford, 16 L.R.A. 803, 2 C. C. A. 355, 1 U. S. App. 296, 51 Fed. 513; Masonic Ben. Asso. v. Lyman, 9 C. C A. 104, 18 U. S. App. 507, 60 Fed. 498; Pickham v. WheelerBliss Mfg. Co. 23 C. C. A. 391, 46 U. S. App. 605, 77 Fed. 663. (See General Exceptions; and When Exceptions to Charge may be Reviewed.)

General Exceptions to Charge.

The bill of exceptions cannot be so stated as to draw the whole matter in review, but only separate and distinct points of law, whether to charge given or refused, or the evidence, as general exceptions are not reviewable. Partridge v. Boston & M. R. Co. 107 C. C. A. 49, 184 Fed. 211; Vider v. O'Brien, 10 C. C. A. 385, 18 U. S. App. 711, 62 Fed. 326; Philip Schneider Brewing Co. v. American Ice Mach. Co. 23 C. C. A. 89, 40 U. S. App. 382, 77 Fed. 138; Block v. Darling, 140 U. S. 234, 55 L. ed. 476, 11 Sup. Ct. Rep. 832; Worthington v. Mason, 101 U. S. 149, 25 L. ed. 848. See chapter 15, post, p. 110.

So, a general exception to refusal of charges will not be considered if any one of the propositions submitted is unsound. Linehan R. Transfer Co. v. Morris, 30 C. C. A. 575, 59 U. S. App. 718, 87 Fed. 127; New England Furniture & Carpet Co. v. Catholicon Co. 24 C. C. A. 595, 49 U. S. App. 78, 79 Fed. 294; Waples-Platter Co. v. Turner, 27 C. C. A. 439, 49 U. S. App. 592, 83 Fed. 64; Southern P. Co. v. Hetzer, 1

L.R.A.(N.S.) 288, 68 C. C. A. 26, 135 Fed. 285; Newman v. Virginia, T. & C. Steel & I. Co. 25 C. C. A. 382, 42 U. S. App. 466, 80 Fed. 228. So, an exception to the refusal of the court to give nine separate charges is too vague, without further ef fort to particularize. Pittsburgh & W. R. Co. v. Thompson, 27 C. C. A. 333, 54 U. S. App. 222, 82 Fed. 720. The bill must show affirmatively the errors alleged; that they were rejudicial; that timely objection was made thereto; and the grounds of objection clearly stated. If it does not, it is fatally defective, it cannot be remedied in the assignment of error. Newman v. Virginia, T. & C. Steel & I. Co. 25 C. C. A. 382, 42 U. S. App. 466, 80 Fed. 228; Linehan R. Transfer Co. v. Morris, 30 C. C. A. 575, 59 U. S. App. 718, 87 Fed. 127. Thus an exception to the charge of the court, "in so far as it is inconsistent with the charges asked," is not reviewable. Partridge v. Boston & M. R. Co. 107 C. C. A. 49, 184 Fed. 211; Phoenix Assur. Co. v. Lucker, 23 C. C. A. 139, 42 U. S. App. 111, 77 Fed. 243.

Again, where no evidence is set out in the bill of exceptions to show the applicability of the charge given or refused, the error, if any, is not reviewable (Phoenix Mut. L. Ins. Co. v. Raddin, 120 U. S. 184, 30 L. ed. 644, 7 Sup. Ct. Rep. 500; Jones v. Buckell, 104 U. S. 554, 26 L. ed. 841; Southwest Virginia Improv. Co. v. Frari, 7 C. C. A. 149, 8 U. S. App. 444, 58 Fed. 172; South Penn Oil Co. v. Latshaw, 49 C. C. A. 478, 111 Fed. 599, 21 Mor. Min. Rep. 600; Yates v. United States, 32 C. C. A. 507, 61 U. S. App. 124, 90 Fed. 57; Merchants' Exch. Bank v. McGraw, 22 C. C. A. 622, 48 U. S. App. 55, 76 Fed. 930, 936), unless the instruction would be erroneous under any state of evidence.

Time When Exceptions to Charge Must be Taken.

See chapter 15, post, p. 113.

When an exception to a charge is taken after the jury retire, it will not be considered. Yates v. United States, 32 C. C. A. 507, 61 U. S. App. 124, 90 Fed. 57; Dalton v. Moore, 72 C. C. A. 459, 141 Fed. 314, and cases cited. See this last case for extraordinary circumstances where the court modified

the rule to suit the circumstances.

Again, see Merchants' Exch. Bank v. McGraw, 22 C. C. A. 622, 48 U. S. App. 55, 76 Fed. 930, where the jury returned for instructions, and they were given in the absence of counsel.

Keep in mind that a charge does not become a part of the record unless incorporated in the bill of exceptions. Being in the record merely presents it to the appellate court as the opinion of the court below transmitted under rule 14, all circuits. Blake v. United States, 18 C. C. A. 117, 33 U. S. App. 376, 71 Fed. 286. (See Charge of Court, chapter 15, post, p. 110, for further discussion of exceptions to charges).

Motion to Direct Verdict.

Where a court is moved to charge the jury, by giving peremptory instructions to bring in a verdict for one party or the other, the error, if any, must be brought to the appellate court by a bill of exceptions, containing the motion, the ruling upon it, the objections there made, and the grounds of objection as stated, and the evidence in the case. Sun Pub. Co. v. Lake Erie Asphalt Block Co. 84 C. C. A. 584, 157 Fed. 80; German Ins. Co. v. Frederick, 7 C. C. A. 122, 19 U. S. App. 24, 58 Fed. 148. Whether the court should or should not have instructed the verdict on the evidence is a question of law to be solved by the appellate court; and to do so, the motion, the ruling, the exception taken, and all the evidence, are necessary, and the trial judge should certify the fact. Where the trial judge certified that the bill contained the substance of all the evidence given at the trial, it was held sufficient to enable the appellate court to pass upon the issue. First Nat. Bank v. Moore, 78 C. C. A. 581, 148 Fed. 958; Crowe v. Trickey, 204 U. S. 235, 51 L. ed. 458, 27 Sup. Ct. Rep. 275.

All the facts in the case should appear in the bill of exceptions. The fact that all the evidence appears in the record does not authorize its consideration by the appellate court; it must come up in the bill of exceptions authenticated by the certificate of the trial judge, that it is all the evidence taken. Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co. 81 C. C. A. 76, 151 Fed. 468, and cases cited.