judge is called upon to confess, or deny his seal.' If he confess it, the bill of exceptions and all the proceedings are entered upon the record, the party ass igns his errors, - and the court proceed to determine the question. The judgment on the writ is, that the former judgment be either affirmed, or reversed.

2

The Stat. West 2. forms a part of our common law, and the right has frequently been exercised in our practice. It has, however, been, in a great measure, superseded in England, by motions for new trials, and, in this state, by the statute provisions respecting exceptions.

By Stat. 1804. ch. 105. s. 5. it is provided, "that whenever the Supreme Court shall be holden by any one of the justices thereof, it shall be lawful for any party, thinking himself aggrieved by any opinion, direction, or judgment of the said justice, in any action or process of a civil, or criminal nature, to allege exceptions to the same, at the term of said court, when such opinion, direction, or judgment shall be given or pronounced and such exceptions, being reduced to writing in a summary mode, and presented to the court, before the adjournment thereof without day, and found conformable to the truth of the case, shall be allowed and signed by the justice holding said court; and thereupon all such action or process, in or upon which judgment shall not have been rendered, at the time of allowing such exceptions, shall be continued to the

1 Vide Money et al. v. Leach, 3 Burr. Rep. 1692, where the form of writ to summon in the judge to confess or deny his seal, is given.

2 Ibid. Bull. N. P. 316, where the form of a bill of exceptions, and of the record, is given at length.

next term of the said court, to be holden in the same county:"-" and such action or process, wherein exceptions shall be alleged to the final judgment of the court thereon, shall likewise be continued in the same manner, and execution thereon shall be stayed, but without prejudice to any attachment made on the original writ, in any civil action. Provided however, that no trial by jury shall be delayed or prevented, by the making or filing of exceptions to the opinion or judgment of the court, upon any dilatory plea, or upon any question of law, arising during the trial; and whenever it shall appear to the court, that the exceptions, made in or after the trial of any cause, are frivolous, immaterial, or intended for delay, judgment may be entered, and execution awarded or stayed, on such conditions, as the court may deem reasonable, notwithstanding the allowance of the proceedings; and the court, to which actions may be continued upon exceptions filed and allowed, shall have cognizance thereof, and shall do therein what to law and justice shall appertain."

By Stat. 1820. ch. 79. s. 5. it is provided, that it shall be lawful for either party, thinking himself aggrieved by any opinion, direction, or judgment of the Court of Common Pleas, in any matter of law, to allege exceptions to the same, which exceptions being reduced to writing, in a summary mode, and being presented to the court, before the adjournment thereof, and found conformable to the truth of the case, shall be allowed and signed by the presiding judge, or justice of said court, and thereupon all further proceedings in such action in said court shall be stayed, and the party making such exception shall enter such action at the Supreme Judicial Court, at the next term

thereof for the same county, and shall produce there a copy of all the papers, as in case of appeal. And the said Supreme Judicial Court shall have cognizance thereof, and consider and determine the same action, in the same manner as they are authorized to do, in respect to actions in which questions of law are reserved, in any of the modes prescribed by law, by any one justice of the Supreme Judicial Court, and shall render judgment, and issue execution thereon, or may grant a new trial at the bar of said court, as law and justice shall require.'

SECT. I. IN WHAT CASES EXCEPTIONS MAY BE ΤΑΚΕΝ.

In Supreme Judicial Court. Under Stat. 1804. ch. 105. s. 5. in all trials in the Supreme Court, exceptions may be alleged to any direction or decision, by the judge who tries the case, upon any point of law arising therein, during the course of the trial, except the point decided be some one within his sole discretion, and also to the final judgment in the case.

In Court of Common Pleas. Notwithstanding the very general terms of the Stat. 1820. ch. 79. s. 5. there are some cases, in which it has been holden not to apply.

1. Whenever the party has a right of appeal from the Court of Common Pleas, he cannot bring a writ of error, or allege exceptions.2

1 As to costs, where the exceptions are deemed frivolous, or intended for delay, or where the action is not entered, vide ante Costs, Book I. Chap. XXVII. page 303.

2

Champion v. Brooks, 9 Mass. Rep. 228. Rathbone v. Rathbone, 4 Pick. Rep. 89.

But to an order dismissing an action, though the ad damnum exceed one hundred dollars, yet if the defendant have not pleaded, the statute does not apply; for there having been no issue joined, the plaintiff has no right of appeal.'

2. Where the proceeding in the Court of Common Pleas, is such an one, that the Supreme Court cannot, upon reversing their order, proceed to grant a new trial at their own bar, one cannot allege exceptions; thus upon a complaint under Stat. 1785. ch. 66. s. 2. for the maintenance of a bastard child,2 exceptions cannot be alleged; so on a judgment rendered upon a report of referees, on a submission before a justice of the peace. But exceptions have been sustained, to proceedings on the report of referees, on a submission under a rule of court, because, in this case, the action may be tried in the Supreme Judicial Court, and judgment entered, as in other cases.1

5

3. When the proceeding complained of, is within the discretion of the Court of Common Pleas, and so not a "matter of law; "-as the granting or refusal of a continuance, or refusing to bring forward an action, which had been defaulted at the first term, in consequence of the plaintiff's ignorance that the defendant was out of the commonwealth, exceptions cannot be alleged.

6

4. When the decision of the Court of Common Pleas is interlocutory, and they do not finally dispose

↑ Miller v. Miller, 2 Pick. Rep. 570. Olney v. Brown, 2 Pick. Rep.

of the case, as on a refusal to dismiss an action, for want of an indorser,' or on an order, that a trustee should answer certain interrogatories,2 exceptions cannot be sustained; but they will be sustained, to a refusal by the Court of Common Pleas, to submit the question of assignment under a trustee's answer, to the jury, and also to any error of law, in assessing damages, or in ascertaining the amount of damages by a jury, after a default."

3

In all these cases, however, in the Court of Common Pleas, which have been holden not to be within the statute, exceptions may be filed, and after final judgment, will be available.

SECT. II. PROCEEDINGS IN TAKING EXCEPTIONS.

1. In Supreme Judicial Court. The exceptions under Stat. 1804. ch. 105. s. 5. whether they be to some direction or decision of the judge, in the course of the trial, or to the final judgment, are generally at first taken verbally, at the time the objections occur, though, it seems, that this is not necessary, but they may be taken at any time during the term.5

If the exceptions taken, be to an opinion, or judgment of the court, upon any dilatory plea, or upon any question of law arising during the trial, the trial by the jury is not thereby delayed or prevented, but proceeds in the same manner, as if no exceptions had been taken.

1

Ely et al. v. Ball et al. 8 Pick. Rep. 352. Vide Purple v. Clark et al. 5 Pick. 206.

2

Piper v. Willard & Tr. 6 Pick. Rep. 461.

3 Ammidown v. Wheelock & Tr. 8 Pick. Rep. 470.

* Storer v. White, 7 Mass. Rep. 448.

Buckland v. Charlemont, 3 Pick. Rep. 173.