The record showed that plaintiff asked six instructions, of
which the court gave two, declined to give one, and declined to
give the other three except as covered by the general charge. The
whole charge was contained in the bill of exceptions, which thus
concluded:
"To which refusal and charge of the court and the exclusion of
evidence offered and to the action of the court in refusing a new
trial, plaintiff excepted and tendered this bill of exceptions,
which was signed and sealed by the court and ordered to be made a
part of the record in this cause."
Held that this exception was insufficient.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER.
This was an action on the case to recover damages for injuries
received through the alleged negligence of the defendant. Ten
errors were assigned, two of which relate to the exclusion of
evidence. As to one of these, it was properly admitted at the bar
that the evidence in question was not excluded, and that so much of
the record as showed the contrary was taken from the record of a
former trial of the case. As to the other, no exception to the
action of the court was preserved. The remaining errors assigned
relate to the refusal to give certain instructions requested by
plaintiff, and to parts of the charge. The record shows that
plaintiff asked six instructions, of which the court gave two,
declined to give one, and declined to give the other three except
as covered by the general charge. The whole charge is contained in
the bill of exceptions, which thus concludes:
Page 157 U. S. 683
"To which refusal and charge of the court and the exclusion of
evidence offered, and to the action of the court in refusing a new
trial, plaintiff excepted, and tendered this bill of exceptions,
which was signed and sealed by the court and ordered to be made a
part of the record in this cause."
This exception was insufficient. Rule 4;
Rogers v.
The Marshal, 1 Wall. 644;
Harvey v.
Tyler, 2 Wall. 328;
Insurance
Co. v. Sea, 21 Wall. 158;
Beaver v.
Taylor, 93 U. S. 46;
Block v. Darling, 140 U. S.
238.
Judgment affirmed.