held that the court could not review the question whether the evidence was sufficient to warrant the verdict.29 Where it is claimed that the jury refused to follow an instruction of the court, the bill of exceptions must show affirmatively that they did so.30

In the absence of a statement to that effect, a bill of exceptions is presumed not to contain all the evidence. If the bill of exceptions shows that an offer of evidence was made and refused admission, and there is nothing in the record to indicate bad faith, the appellate court must assume that the proof could have been made, and govern itself accordingly. The rules of the Supreme Court provide that "the judges of the Circuit and District Courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and these matters of law, and these only, shall be inserted in the bill of exceptions, and allowed by the court." 33 A general exception to the whole charge, or to the whole charge "and to each and every part thereof," is of no effect where the charge contains distinct propositions, and any one of them is free from objection. So is an exception to "a theory announced throughout" a charge, or throughout an instruction in the same. An exception to the refusal of the court to instruct the jury in language prayed for by counsel is of no avail, if the refusal be followed by instructions in the general charge in different language, but substantially to the same effect. An exception to a charge or to a refusal to charge is of no avail unless the bill of exceptions

34

37

29 Union Pac. Ry. Co. v. Harris 7 Wall. 132, 139; Cooper v. Schles(C. C. A.), 63 Fed. R. 800. inger, 111 U. S. 148, 151; Mobile &

30 Harper & Reynolds Co. v. Wil- M. Ry. Co. v. Jurey, 111 U. S. 584, gus (C. C. A.), 56 Fed. R. 587. 596; Burton v. West Jersey F. Co., 114 U. S. 474, 476.

31 Atchison, T. & S. F. R. Co. v. Myers (C. C. A.), 63 Fed. R. 793.

35 Price v. Parkhurst (C. C. A.), 53

32 Scotland County v. Hill, 112 U. S. Fed. R. 312. 183, 186.

33 S. C. Rule 4; C. C. of A. Rule 10. 34 Anthony v. Louisville & N. R. Co., 132 U. S. 172; Lincoln v. Claflin,

36 Bogk v. Gasser, 149 U. S. 17, 26. 37 Anthony v. Louisville & N. R. Co., 132 U. S. 172.

42

shows that it was taken before the jury retired. It is too late to take it subsequently, even although it is given in the counsel's absence at the jury's request for further instructions."9 A statement that the party who requested the instruction "then and there excepted," is sufficient." The material facts or proofs on which the charges to which exceptions were taken rest," and enough of the evidence to show that they were erroneous, should be inserted before the charge, in order that the court may see if the points arose on which they were given and to which exception was taken. The part of the charge to which the exception was taken must be inserted in full, with enough of the rest to show that it was not qualified." In a civil case, the omission of the court to charge on a material question of law is not the subject of an exception when no request for such charge was made on the trial.45

43

A judge is not required to charge the law on hypothetical questions which do not affect the case on trial." If the party asking the charge is dissatisfied with the court's refusal, he may except thereto, which exception will avail him if he shows that the request was warranted by the testimony, and that the charge he asked ought to have been given." If the judge proceeds to state the law, and states it erroneously, an exception will lie to his ruling, and if it could have had any influence on the jury, the verdict will be set aside. An exception to the remarks of counsel should be taken when they are made." Where a party, after an exception, instead of standing upon it, by an amendment or otherwise withdraws from the position

38 Phelps v. Mayer, 15 How. 160; Pacific Express Co. v. Malin, 132 U. S. 531.

149; U. S. v. Wingate, 44 Fed. R. 129, 131.

43 Stimpson v. West Chester R. Co.,

29 Stewart v. Wyoming C. R. Co., 3 How. 553. 128 U. S. 383.

40 Kellogg v. Forsyth, 2 Black, 571. It has been held that the statement "to which defendant excepted," when following a ruling in what purports to be a narrative report of the trial, is sufficient. New Orleans & N. E. Ry. Co. v. Jopes, 142 U. S. 18. 41 U. S. v. Morgan, 11 How. Pr. 154, 158.

42 Worthington v. Mason, 101 U. S.

44 Hicks v. U. S., 150 U. S. 443, 453. 45 Texas & P. Ry. Co. v. Volk, 151 U. S. 73.

59.

46 Etting v. Bank of U. S., 11 Wheat.

47 Etting v. Bank of U. S., 11 Wheat. 59, 75. Cf. Hudson v. Charleston, C. & C. R. Co., 55 Fed. R. 252.

48 Etting v. Bank of U. S., 11 Wheat. 59, 75.

49 Chandler v. Thompson, 30 Fed. R. 38, 45.

that the court held to be erroneous, it may be held that he has waived his right to review the question upon a writ of error.50 Where a defendant, after an exception to a refusal to direct a verdict in his favor at the end of the plaintiff's case, offers evidence in support of his defense, he waives such prior exception.51

The rules of the Circuit Courts usually regulate the manner of settling bills of exceptions. When they are silent, the old English practice is followed. It is the practice in the First and Second Circuits to have but one bill of exceptions containing all the exceptions taken upon the trial. In the Western Circuits several bills of exceptions are often prepared and presented. In the Southern District of New York a special rule regulates the manner and the time within which a bill of exceptions may be settled and signed.5

In the Eighth Circuit it is the practice to enter judgment immediately after the verdict; and the motion for a new trial may subsequently be made. In that circuit a bill of exceptions may be allowed and filed at the term at which the motion for a new trial is determined, although that is subsequent to the term at which judgment is entered.56 Where the record shows that judgment was entered for relief inconsistent with the verdict; 57 or the evidence is all documentary and is annexed to the pleadings or otherwise incorporated in the record; 5 or there is a demurrer to evidence, and the record shows the evidence demurred to,59 an error thereby appearing may be reviewed without a bill of exceptions. Entries by the clerk of exceptions in the record are disregarded. The bill of excep

50 Campbell v. Haberhill, 155 U. S. 610, 612.

51 Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700; Accident Ins. Co. v. Crandal, 120 U. S. 527; Robertson v. Perkins, 129 U. S. 233; Columbia & P. R. Co. v. Hawthorn, 144 U. S. 202.

52 Chateaugay Ore & Iron Co., 128 U. S. 544, 555; Pomeroy's Lessee v. State Bank of Indiana, 1 Wall. 592, 598.

53 Pomeroy's Lessee v. State Bank of Indiana, 1 Wall. 592, 601.

60

58

54 Pomeroy's Lessee v. State Bank of Indiana, 1 Wall. 592, 598.

55 Chateaugay Ore & Iron Co., 128 U. S. 544.

56 Woods v. Lindvall, 48 Fed. R. 73. 57 Bennett v. Butterworth, 11 How. 669; Hodges v. Easton, 106 U. S. 408.

55 Clinton v. Mo. Pac. Ry. Co., 122 U. S. 469, 474; Moline Plow Co. v. Webb, 141 U. S. 616, 623.

59 Baltimore & P. R. Co. v. Trustees of Sixth Pres. Church, 91 U. S. 127. 60 Young v. Martin, 8 Wall. 354.

tions is no part of the record,61 and it cannot be considered when the judgment is attacked collaterally."

§ 378. Judgments. It has been held that in actions for joint torts, judgment may be entered in favor of some and against others, if the jury so find in their verdict,' but that separate judgments for different amounts cannot be entered against different defendants' except by consent.3

Where a plaintiff has recovered a verdict for more than the amount sufficient to warrant a review by writ of error, he may by leave of the court file before judgment a remittitur of part of such verdict and enter judgment for an amount less than that required for a review by writ of error. In such a case, no writ of error will issue to the judgment where the jurisdiction of the court of review depends upon the matter in dispute." After judgment a plaintiff cannot, by a release of part of the judgment, deprive his adversary of the right to a writ of error; 6 except by special leave of the court, which may allow him to file a remittitur nunc pro tunc, and amend the judgment accordingly, before a writ of error has been allowed. An omission

61 U. S. v. Taylor, 147 U. S. 695, 700; In re Haskell, 52 Fed. R. 795, 798. As to what constitutes the record, see U. S. v. Taylor, 147 U. S. 695.

62 In re Haskell, 52 Fed. R. 795, 798. § 378. Chaffee & Co. v. U. S., 18 Wall 516; Sawin v. Kenney, 93 U. S. 289; Sessions v. Johnson, 95 U. S. 347; Insurance Co. v. Boykin, 12 Wall. 433; Chils v. Gronlund, 41 Fed. R. 505.

2 Chils v. Gronlund, 41 Fed. R. 505. * Insurance Co. v. Boykin, 12 Wall. 433. But see Lovejoy v. Murray, 3 Wall. 1, 11.

4 Thompson v. Butler, 95 U. S. 694; Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232; First Nat. Bank v. Redick, 110 U. S. 224; Pacific Exp. Co. v. Malin, 132 U. S. 531. An entry in the clerk's minutes that the plaintiff consented to the reduction of a verdict is sufficient evidence thereof, and in such a case, after the

reduced amount has been paid and satisfaction of the judgment given, the court will not set aside the transaction on the ground that it had improperly compelled the plaintiff to do so as a condition of a denial of the motion to set the verdict aside as excessive. Lewis v. Wilson, 151 U. S. 551. Where the plaintiff had sued for the benefit of others besides herself, it was held that so much of a remittitur filed by her as affected the others' share in the verdict was absolutely void. See Southern Pac. Co. v. Tomlinson, 163 U. S. 369.

Thompson v. Butler, 95 U. S. 694; Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232; First Nat. Bank v. Redick, 110 U. S. 224; Pac. Express Co. v. Malin, 132 U. S. 531.

6 N. Y. El. R. Co. v. Fifth Nat. Bank, 118 U. S. 608.

7 Pacific Exp. Co. v. Malin, 132 U.S. 531.

of allegations of citizenship essential to the jurisdiction cannot be cured by their insertion in a remittitur.

The Federal courts should follow the State practice in recording judgments." The Revised Statutes provide that “judgments and decrees rendered in a Circuit or District Court, within any State, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such State cease by law to be liens thereon." 10 A recent statute provides as follows: "That judgments and decrees rendered in a Circuit or District Court of the United States within any State, shall be liens on property throughout such State in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such State; Provided, that whenever the laws of any State require a judgment or decree of a State court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the State of Louisiana, before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such State shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the State." "That the clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross-indices of the judg ment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the public." "Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any State office within the same county or the same parish in the State of Louisiana in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county, if the clerk of the United States court be required

8 Denny v. Pironi, 141 U. S. 121.

9 Morrison v. Bernards Tp., 35 Fed. R. 400; 25 St. at L. 357.

10 U. S. R. S., § 967. See Sellers v. Corwin, 5 Ohio, 398.