upon the points involved, or by specific exceptions to the instructions given, so as to call the attention of the court to the precise point of objection: Tomlinson v. Wallace, 16 Wis. 224; Kellogg v. Chicago etc. R'y Co., 26 Id. 286, and cases there cited; Schmalz v. Hauseman, 7 N. Y C. P. 414; Dickey v. Malechi, 6 Mo. 177; S. C., 34 Am. Dec. 130; Selleck v. Sugar Hollow etc. Co., 13 Conn. 453; Sipe v. Sipe, 14 Ind. 477; McReady v. Rogers, 1 Neb. 124; S. C., 93 Am. Dec. 333, note 337; Coons v. Renick, 11 Tex. 134; S. C., 60 Am. Dec. 230.

It is a well-settled rule that a general exception to a charge containing two or more distinct legal propositions is unavailing, if either of the propositions is correct. A general exception to the whole of such a charge is insufficient on appeal, unless the whole charge is wrong. If any one of the propositions is correct, a general exception to the whole of them fails, and will be overruled even in the primary court. Stated in another form, exceptions to instructions must be specific, or the instructions will not be reviewed, and if excepted to as a whole, all must be affirmed, if one is found correct: Hepburn v. Montgomery, 5 N. Y. C. P. 250, and numerous New York cases there cited; Cooper v. Schlesinger, 111 U. S. 148; Mobile etc. R'y Co. v. Jurey, 111 Id. 584; Sanford v. Crocheron, 8 N. Y. C. P. 146; Haggart v. Morgan, 5 N. Y. 422; S. C., 55 Am. Dec. 350, note 354; Tomlinson v. Wallace, 16 Wis. 224; McReady v. Rogers, 1 Neb. 124; S. C., 93 Am. Dec. 333, note 337; Milwaukee etc. R. R. Co. v. Hunter, 11 Wis. 160; S. C., 78 Am. Dec. 699; Hart v. Rensselaer etc. R. R. Co., 8 N. Y. 37; S. C., 59 Am. Dec. 447; Dickey v. Malechi, 6 Mo. 177; S. C., 34 Am. Dec. 130; Beall v. Territory, 1 N. M. 507; Benson v. Lundy, 52 Iowa, 265; Caswell v. Fellows, 110 Mass. 52; Macintosh v. Bartlett, 67 Me. 130; Kansas Pacific R'y Co. v. Nichols, 9 Kan. 235; Board of Water Commissioners v. Burr, 3 Jones & S. 522; Hamlin v. Haight, 32 Wis. 237; Walsh v. Kelly, 40 N. Y. 556; Butcher's Melting Ass'n v. Commercial Bank, 2 Disn. 46; Brassell v. State, 64 Ga. 318; Ivey v. Coleman, 42 Ala. 409; Fullenwider v. Ewing, 25 Kan. 69; State v. Pike, 65 Me. 111; John D. C. v. State, 16 Fla. 554; Crisman v. McDonald, 28 Ark. 8; Beaver v. Taylor, 93 U. S. 46; Galloway v. McLean, 2 Dak. 372; Bard v. Elston, 31 Kan. 274; Norton v. Livingston, 14 S. C. 177; Dean v. Chicago etc. R'y Co., 43 Wis. 305. The same rule applies to a general exception by one party to the giving of instructions asked by the other, where they embrace several propositions of law, any one of which is not erroneous. A general exception in such a case presents no question for review: Davenport Gas Light etc. Co. v. City of Davenport, 13 Iowa, 229. Where the court, at the request of the defendant, gave to the jury five or more separate and distinct instructions, and the record showed that the plaintiff excepted to these instructions in the following form: "To the giving of which said instructions as asked by the defendant, and to the refusal of said court to charge said jury as requested by the plaintiff, the plaintiff then and there duly excepted and excepts," it was held one general exception, and insufficient: Bard v. Elston, 31 Kan. 274. An exception to an instruction, filed after verdict, specifying that it "misdirected the jury in a matter of law," is too general, and will not be considered: Benson v. Lundy, 52 Iowa, 265. An exception "to the charge as given, and to each and every part thereof," and to “every line, sentence, and paragraph of the same," will not be sustained where any portion of the charge is correct: Danielson v. Dyckman, 26 Mich. 169. An exception which is "so particular in pointing at everything that it specifies nothing, is about equivalent to a general objec tion to the judge's charging at all ": Id. A general exception of record "to each and every portion" of a general charge, embracing several legal proposi

tions, is held insufficient in Wisconsin, unless the whole charge is erroneous: Hamlin v. Haight, 32 Wis. 237; Dean v. Chicago etc. Ry Co., 43 Id. 305; but in Iowa the exceptor is entitled, on appeal, to present his objections to any of the instructions, though he admitted that some of them were correct: Eikenberry v. Edwards, 67 Id. 14; and in Kansas it will be presumed that exceptions were duly taken to each and every portion of the charge separately, and that they are correct: Kansas etc. R'y Co. v. Nichols, 9 Kan. 235; Bard v. Elston, 31 Id. 274. In Indiana, where a party requests the jury to be charged in writing, and in disregard of such request the judge gives verbal instructions and explanations, a general exception is sufficient to review the judicial action, where the party excepted to all the instructions, and said that all included each: Sutherland v. Venard, 34 Ind. 390. So in Iowa, a general exception to the refusal of the court to give instructions asked is sufficient: Harvey v. Tama Co., 53 Iowa, 228; where such refusal is noted on the margin of each instruction: Davenport Gas etc. Co. v. City of Davenport, 13 Id. 229; but in Wisconsin, an exception "to the refusal of the court to give the written instructions asked for by defendant" is insufficient, unless all the instructions asked were correct: Hamlin v. Haight, 32 Wis. 237.

If a bill of exceptions states that a party requested the judge to grant certain requests for instructions, and that the judge declined to give the instructions requested, but gave full and appropriate instructions not excepted to, and omits to state what these instructions were, there is no ground of exception, unless the party had the right to have the instructions given without modification or qualification: Woods v. Woods, 127 Mass. 141. Where a party excepts to a refusal to give an instruction as asked, but not to the giving of the same as modified, and the ruling of the court is not urged as a ground for a new trial, nor assigned for error in the appellate court, the only question before that court will be, whether the trial court erred in refusing the instruction as asked: Chicago City R'y Co. v. Mumford, 97 Ill. 560. In California, an objection to an oral charge to a jury should specifically point out in what the objection consists: Sill v. Reese, 47 Cal. 294; so an exception to the charge given by the court of its own motion must specify the proposition which is deemed objectionable: Shea v. Potrero etc. R. R. Co., 44 Id. 414; but when a party procures the court to give to the jury instructions which contain legal propositions, it is sufficient for the other party, in his exception, to say generally that he excepts to each and all of the instructions, without specifying the objectionable part: McCreery v. Everding, 44 Id. 246; Shea v. Potrero etc. R. R. Co., 44 Id. 414. It is sufficient in the specification made in the statement on motion for a new trial, of reasons why a new trial should be granted, to assign errors in law occurring by "giving each of the instructions asked by the defendants." Such specification sufficiently points out the particular errors in the instructions relied on: McCreery v. Everding, 44 Id. 246. It is improper, on appeal, to point out a single instruction, and claim it to be objectionable of itself, but all the instructions must be considered together: Nickles v. Wells, 2 Utah, 167; People v. Sensabaugh, 2 Id. 473; Williams v. Vanmeter, 8 Mo. 339; S. C., 41 Am. Dec. 644. Instructions should be identified by making them a part of the record by an order of court, or they should form part of the bill of exceptions signed by the court. The proper mode is to include them in the bill of exceptions signed by the judge, and where the errors complained of should be plainly and distinctly set forth: Forest v. Crenshaw, 81 Ky. 51; Brown v. State, 28 Ga. 199; Potter v. Wooster, 10 Iowa, 334. Instructions. to the jury, which have not been filed or directed by the court to be made part of the record, and which are

not in any proper bill of exceptions, are [not a part of the record: Aufdencamp v. Smith, 96 Ind. 328. The office of a bill of exceptions is to bring up for review questions of law made and decided on the trial: See note to Freeman v. People, 47 Am. Dec. 238; and law of bills of exception in criminal cases is the same as in civil: Shorter v. People, 2 N. Y. 193; S. C., 51 Am. Dec. 286. Motions and instructions are no part of the record, and can only be made part of it by being incorporated bodily in a bill of exceptions. If not so incorporated, they cannot be noticed by the appellate court. A mere reference to them in the bill, by citing the page of the transcript on which they appear, is insufficient: Jefferson City v. Opel, 67 Mo. 394. And the motion for a new trial must be incorporated in the bill of exceptions: Robinson v. Hood, 67 Id. 660. Where a writ of error brings up a formal bill of exceptions, a court of error is strictly to confine its attention to what is presented by the bill and its proper appendages: Forsyth v. Matthews, 14 Pa. St. 100; S. C., 53 Am. Dec. 522.

To enable the appellate court to decide upon the propriety of instructions given, or the pertinency of those refused, the evidence must be preserved in the bill of exceptions, and enough of it given to show whether error has been committed: Houston v. Lane, 39 Mo. 495; Hoof v. Rollins, 7 W. Va. 540; Potter v. Wooster, 10 Iowa, 334; Paine v. Smith, 32 Wis. 335; Brewer v. Strong's Ex'rs, 10 Ala. 961; S. C., 44 Am. Dec. 514; Lord v. Inhabitants of Kennebunkport, 61 Me. 462; Leverett's Heirs v. Carlisle, 19 Ala. 80; Forsyth v. Matthews, 14 Pa. St. 100; S. C., 53 Am. Dec. 522. Compare Duggins v. Watson, 15 Ark. 118; S. C., 60 Am. Dec. 560; Keitt v. Spencer, 19 Fla. 748. Exceptions will not be sustained, unless the case shows affirmatively that the excepting party has been aggrieved by the ruling complained of: Bryant v. Knox, 61 Me. 300; Day v. Raquet, 14 Minn. 273; Hearn v. Shaw, 72 Me. 187. And there must be an exception to the action of the lower court respecting its rulings on the instructions. Thus a transcript from a circuit court, which contains the instructions marked according to the statute, a bill of exceptions embracing all the evidence, a motion for a new trial for specified errors in giving and refusing charges, and an order overruling the motion, is insufficient to enable the supreme court to consider errors assigned in the instructions in the light of the evidence, unless there is in the record an express recital of exception to the action of the court on the instructions or on the motion for a new trial: Bourland v. Board of Supervisors, 60 Miss. 996. But in the earlier practice of Mississippi, instructions asked in the court below, and refused, and so marked by the clerk, were considered as if excepted to, without a formal bill of exceptions: Watson v. Dickens, 20 Id. 608. Where the judge, after signing the bill of exceptions, wrote on it that "the whole charge given to the jury" was to be inserted therein, this not referring on its face to a written charge on file, it was held a fatal defect: Oliver v. Town, 24 Wis. 512.

Under the Texas practice, however, no formal bill of exceptions to instructions given or refused is necessary: Jones v. Thurmond, 5 Tex. 318; Earle v. Thomas, 14 Id. 583. In the case last cited, at page 593, the court used the following language: "It has sometimes been said that a party wishing to take advantage of any error in the charge of the court must except. But by this it is not intended that he shall take a bill of exceptions; for he may attain the same purpose by asking such instructions as will place the law of the case in a proper light before the jury, which, if refused, will have the effect of a bill of exceptions. So, in Arkansas, the instructions need not be embodied in the bill of exceptions; if they are so marked and referred to that

they may be identified, it is sufficient: Stirman v. Cravens, 29 Ark 548. Good practice requires that instructions be numbered: Kansas Pacific R'y Co. v. Ward, 4 Col. 30; and signed. Thus, under the Indiana statute, if one desires special instructions, they must be reduced to writing, numbered and signed by such party or his attorney, and delivered to the court: Sutherland v. Hankins, 56 Ind. 343. If the instructions are not thus signed, and are refused, the party asking them cannot be heard to complain of such refusal in the supreme court: McCammack v. McCammack, 86 Id. 387. Where an instruction asked by a party is in writing, and signed by the party or his attorney, it thereby becomes a part of the record. An exception may be taken to the giving of such instruction or the refusing of it by the words "given" (or refused), and "excepted to " being written after it, and signed by the party excepting, or his attorney. If such instruction be so made part of the record, and the exception be so entered, the instruction need not be authenticated by the signature of the judge, or put into a bill of exceptions: Jeffersonville etc. R. R. Co. v. Cox, 37 Id. 325. For extended note on subjects of instructions to juries, and to what extent the judge may comment upon the evidence, see State v. Whit, 72 Am. Dec. 538-549.

MILWAUKEE GAS LIGHT Co. v. SCHOONER GAMECOCK.

[23 WISCONSIN, 144.]

LEGISLATIVE ACT OR CITY ORDINANCE FORBIDDING VESSELS TO DRAG THEIR ANCHORS IN NAVIGABLE STREAM IS INVALID So far as it interferes with the rights of navigation secured by the ordinance of 1787. RIGHTS OF NAVIGATION ON NAVIGABLE RIVER WITHIN LIMITS OF CITY ARE PARAMOUNT to the right of a city gas-light company to lay its pipes across the bed of such river.

IT IS RIGHT OF VESSEL ON NAVIGABLE RIVER WITHIN LIMITS OF CITY to be towed up or down the river by a steam-tug, and where that is the usual or convenient method, to be so towed stern foremost and with an anchor dragging at the prow.

GAS COMPANY CANNOT RECOVER IF THEIR GAS-PIPES IN BED OF NAVIGABLE RIVER WITHIN LIMITS OF CITY ARE INJURED BY ANCHOR of vessel being towed up or down the river, and without negligence on the part of those managing the vessel. But they can recover if there was such negligence.

PARTY TO SUIT CANNOT BE SWORN AND EXAMINED AS WITNESS IN HIS OWN BEHALF WITHOUT NOTICE of his intended examination having been given: See Wisconsin Laws of 1863, chapter 17.

PLAINTIFF was incorporated in 1852, and by its charter was empowered to manufacture and sell gas for the purpose of lighting the city of Milwaukee, etc., and to lay pipes for the purpose of conducting the gas in any of the streets, avenues, etc., of said city. In 1865 it laid down a large gas-pipe across the Menominee River, just below a certain drawbridge, and within the lines of a street. It was claimed to have been laid five feet below the bed of the river. Before this, in 1864, the

common council of Milwaukee had adopted an ordinance, which had not been repealed at the time this suit was brought, forbidding any vessel to be towed in the Milwaukee or Menominee rivers, within the limits of the city, by any tug or vessel propelled wholly or in part by steam, with the anchor of such, so towed, drawn or dragging on the bottom of the river. In April, 1866, the defendant schooner was being towed down the Menominee River by a steam-tug, stern foremost, and with an anchor dragging at the prow. The anchor caught said gas-pipe, and tore it up from the bed of the river. Plaintiff alleged the injury to have been done "willfully and maliciously." This the answer denied, and alleged that the dragging of the anchor was "a necessary and prudent act of navigation," and the fouling of the anchor an inevitable accident. One Wills was examined as a witness for the defense, though objected to, as shown in the opinion. The jury were instructed that, "if it was a proper act of navigation for vessels passing up and down a navigable stream to drag their anchors on the bottom, if it was an act incident to the sailing of vessels and towing them out of harbors or narrow streams, an ordinance of the city could not prohibit it"; that plaintiff had a right under its charter to locate its pipe so as to connect the banks of the river, for the purpose of transmitting gas, so as to supply the whole city, though the river was not specially mentioned in its charter, but that this right was subordinate to the rights of navigation; that from the uncontradicted testimony on that subject they had to assume that the dragging of the anchor at the prow was a proper act of navigation under some circumstances; that the jury had to determine whether those circumstances existed in this case; that if, by proper care and diligence, the injury to the pipe might have been prevented "after" the anchor came in contact with it, plaintiff was entitled to a verdict; and that in determining that question they were to consider whether any and what degree of publicity had been given to the fact that the pipe was there, and to consider the evidence tending to show that the captain, in the first instance, did not know of the existence of the pipe in that place. The court refused plaintiff's sixth instruction, which was as follows: "If the captain of the defendant vessel, upon fouling with the pipe, was informed that he had caught the gas-pipe, and if, with proper precaution, he could have prevented the injury, then defendant is liable for all injury which he could so haye prevented." Verdict for de