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 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 not 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,
Blackwell, for plaintiff in error.
Cowles, for defendant in error.
Judgment affirmed.
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.