#### Eli B. Clemson, Plaintiff in Error, v. Henry Kruper, Defendant in Error.

ERROR TO ST. CLAIR.

A refusal to grant a new trial can not be assigned for error. (1)

A bill of, exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper, or rejecting proper testimony, or for misdirecting the jury on a point of law. (2)

(1)

See note to Sawyer v. Stevenson, ante. p. 24.

(2)

The object of a bill of exceptions is to place upon the record some fact, or ruling of the court, which would not appear without it. But where the question already appears on the record, a bill of exceptions is unnecessary. Thus, a bill of exceptions taken to the overruling of a demurrer is improper; the point saves itself; the judgment is part of therecord. Hough v. Baldwin, 16 Ill., 293. Hawk v. McCullough, 21 Ill., 220. Kitchell v. Burgwin et ux., id., 40. Swift et al. v. Castle, 23 Ill., 209. Van Dusen v. Pomeroy, 24 Ill., 289.

Where a motion is made for a new trial on the ground that the verdict is contrary to evidence, it will not be considered in the supreme court, unless the bill of exceptions contains all the evidence. Wheeler v. Shields 2 Scam., 350. Rogers v. Hall, 3 Scam., 6. McLaughlin v. Walsh, id., 185. Stickney et al. v. Cassell, 1 Gilm., 420. Rowan v. Dosh, 4 Scam., 460. Bruce v. Truett, id., 455. Culbertson v. Galena, 2 Gilm., 131. Granger v. Warrington, 3 Gilm., 310. Webster v. Enfield, 5 Gilm., 302. Buckmaster v. Cool, 12 Ill., 76. Armstrong v. Cooley, 5 Gilm., 512. 2 Scam., 506. Id., 256. 3 Scam., 381. 4 id., 33, 60. 5 Gilm., 186. 16 Ill., 138. Id., 277. Id., 390.15 Ill., 297. 17 Ill., 321. Trustees, &c. v Lefler, 23 Ill., 90.

The supreme court will not examine any question that does not appear on the record, unless it is preserved in a bill of exceptions. Burlingame v. Turner, 1 Scam., 588. Thomas v. Leonard, 4 Scam., 557. Lyon et al., v. Boilvin, 2 Gilm., 629. Selby v. Hutchinson, 4 Gilm., 326. Petty v. Scott, 5 Gilm., 209. Eaton v. Graham, 11 Ill., 620. McBain v. Enloe, 13 Ill., 78. Moss v. Flint, id., 572. Reeve v. Mitchell, 15 Ill., 297. 3 Scam., 381. Id., 411. 4 Scam., 419. 2 Gilm., *211 728. 3 id., 366. 5 id., 126. 11 Ill., 586. 12 Ill., 380. 15 Ill., 329. 24 Ill., 187, 262, 598.

Where a default is taken against a defendant, he may cross-examine the plaintiff's witnesses, but can not take a bill of exceptions. Morton v. Bailey et al., 1 Scam, 215. Should improper testimony be allowed, or wrong instructions given, the proper course is to apply to the court to set aside the inquisition, and grant a new inquest. Ibid.

When a party voluntarily takes a nonsuit, he waives his right to except. Barnes v. Barber, 1 Gilm., 405. The People v. Brown, 3 Gilm., 88. The exception must be taken at the time the decision is made which is complained of: thus, for giving improper instructions, it must be when the instructions are given; it is too late after verdict. Leigh v. Hodges, 3 Scam., 17. Vanderbilt v. Johnson, id., 49. Gibbons v. Johnson, id., 63. Hill v. Ward, 2 Gilm., 293. Dickhut v. Durrel, 11 Ill., 84. Id., 587. Martin v. The People, 13 Ill., 342. Dufield v. Cross, id., 700. Charlesworth v. Williams, 16 Ill., 338. Armstrong v. Mock, 17 Ill., 166. Hance v. Miller, 21 Ill., 636.

Although the exception must be made at the time of the error complained of, it is not indispensable that it should be committed to writing at that time. It may be done at a future time by the agreement of parties, or by an order of the court, entered on the record. Evans v. Fisher, 5 Gilm., 456. Burst v. Wayne, 13 Ill., 666. 23 Ill., 416. 24 id., 43.

If a judge refuses to sign a bill of exceptions when properly presented to him, the Supreme Court will, by mandamus, compel him to sign it. Bristol v. Phillips, 3 Scam., 287.

Opinion of the Court by

Justice Lockwood.

Kruper, the plaintiff below, brought an action of assumpsit in the St. Clair circuit court. The defendant below plead non assump *211 sit, and issue was thereon joined. On the trial a verdict was found for Kruper.

A motion was then made for a new trial which was overruled, and a bill of exceptions, containing the evidence given on the trial, was taken to the opinion of the court overruling the motion for the new trial. Judgment having been rendered on the verdict, a writ of error has been brought to this court to reverse the judgment, and the error relied on is, that “ the court below erred in overruling the said Clemson’s motion for a new' trial, on the ground stated in the bill of exceptions, and because the damages were excessive.” It is objected on the part of the defendant in error, that refusing to grant a new trial can not be assigned for error.

This objection, the court think, well taken, both on the score of adjudged cases, and on principle. A bill of exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper or rejecting proper testimony, or misdirecting a jury on a point of law. The bill of exceptions taken in this case was not for any decision that occurred during the progress of the trial, and was therefore improperly allowed.

If this case had come before the court in a correct form, they are rather inclined to the opinion that the defendant below ought to have had a new trial, but as it is unnecessary to decide this point, they have not made up a definitive opinion on the subject.

As the court are of opinion that the bill of exceptions was *212not correctly taken, to relax the rule in a real or supposed hard case, would be establishing an innovation in the proceedings of courts that would in practice prove extremely inconvenient, if not dangerous. If, however, the decision of the court below has worked serious injustice to the defendant, it is possible a court of equity, upon a proper case, might grant relief. The court, therefore, barely suggest, without deciding the point, if the counsel for the defendant misapprehended the law or practice in relation to taking bills of exception, that it might afford ground for granting a new trial by a court of equity. The judgment must be affirmed with costs, (a)

Blackwell, for plaintiff in error.

Cowles, for defendant in error.

Judgment affirmed.

(a)

Cases of new trials. Sawyer v. Stephenson, p. 24. Cornelius v. Boucher, p. 32. Collins v. Claypole, post. Street v. Blue, post.

No bill of exceptions is valid which is not for matter excepted to at the time of the trial. It is not necessary that the bill of exceptions should be formally drawn and signed before the trial is at an end; it is sufficient if the exceptions be taken at the trial and noted by the court with the requisite certainty, and it may after-wards, during the term, according to the rules of the court, be reduced to form and signed by the judge. In all such cases, however, the bill of exceptions is signed nunc pro tunc, and it purports on its face to be the same as if actually reduced to form and signed, pending the trial, and it would be a fatal error if it appeared otherwise. Walton v. United States, 9 Wheat., 651.

An exception to the opinion of the court is necessary only, when the alleged error can not otherwise appear on the record. Macker’s heirs v. Thomas, 7 Wheat., 530.