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The statement in writing of the objection made by a party in a cause to the decision of the court on a point of law, which, in confirmation of its accuracy, is signed and sealed by the judge or court who made the decision. The object of the bill of exceptions is to put the question of law on record for the information of the court of error having cognizance of such cause.
The bill of exception is authorized by the statute of Westminster 2 the principles of which have been adopted in all the states of the Union. It is thereby enacted 'when one impleaded before any of the justices, alleges an exception praying they will allow it, and if they will not, if he that alleges the exception writes the same, and requires that the justices will put their seals, the justices shall do so, and if one will not, another shall; and if, upon complaint made of the justice, the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written exception with the seal of the justices thereto put, the justice shall be commanded to appear at a certain day, either to confess or deny his seal, and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowed.' The statute extends to both plaintiff and defendant. Bills of exception differ materially from special verdicts and from the opinions of the court filed in the cause.
Here will be considered, 1 the cases in which a bill of exceptions may be had; 2. the time of making the exception; 3. the form of the bill; 4. the effect of the bill.
In general a bill of exception can be had only in a civil case. When in the course of the trial of a cause, the judge, either in his charge to the jury, or in deciding an interlocutory question, mistakes the law or is supposed by the counsel on either side, to have mistaken the law, the counsel against whom the decision is made may tender an exception to his opinion, and require him to seal a bill of exceptions. In criminal cases, the judges it seems, are not required to seal a bill of exceptions.
The bill of exceptions must be tendered at the time the decision complained of is made or if the exception be to the charge of the court, it must be made before the jury have given their verdict. In practice, however, the point is merely noted at the time and the bill is afterwards settled. They may be sealed by the judge after the record has been removed by a writ of error, and after the expiration of his office.
The bill of exception must be signed by the judge who tried the cause; which is to be done upon notice of the time and place, when and where it is to be done. When the bill of exception is sealed, both parties are concluded by it.
The bill of exceptions, being part of the record, is evidence between the parties as to the facts therein stated. No notice can be taken of objections or exceptions not appearing on the bill.