PART 2. of the court, "in trials at law, it is invariably true that the decision of questions upon the weight of evidence belongs exclusively to the jury, it is equally true that wherever instructions upon evidence are asked from the court to the jury, it is the right and the duty of the former to judge of the relevancy, and by necessary implication, to some extent, upon the certainty and definiteness of the evidence proposed. Irrelevant, impertinent, or immaterial statements, a court cannot be called upon to admit as the groundwork of instructions; it is bound to take care that the evidence on which it shall be called to act, is legal; and that it conduces to the issue on behalf either of the plaintiff or of the defendant." Roach v. Bullings, 16 Peters, 319, 323; Clymer's Lessee v. Dawkins et al., 3 Howard, 674, 688; Law v. Cross, 1 Black, 533.

It has, with great propriety, been held that a judge has no right to charge the jury upon a hypothetical case. The United States v. Breiting, 20 Howard, 252. "It is," said the Chief Justice, in pronouncing the decision, "clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury, which they may think sufficient to establish the facts hypothetically assumed; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony." If a series of propositions be embodied in the instructions given, and the instructions be excepted to in mass, if any one of the instructions is correct, the exception will be overruled. Johnson v. Jones et al., 1

Black, 209. A bill of exceptions should contain only CHAP. 2. so much of the evidence as is necessary to present the legal question for the consideration of the appellate court. Id.

There is another decision touching the power and duties of the court too important to be passed over without notice. In the case of Mitchell v. Harmony (13 Howard, 115, 130), it is asserted to be the practice of the state courts in some of the states to express their opinions upon questions of fact as well as of law, and New York was said to be one of those states, and it was held not to be improper where this is customary in the local tribunals, for the national courts to follow their example.

The trial of the case before the court took place in the circuit court for the southern district of New York, and seems to have been well adapted to test the propriety of the usage in question; the language of the court, in expressing its opinion upon the sufficiency of the evidence, on some of the most material questions of fact in the case having been very decided, and this being one of the grounds of exception on which the writ of error was founded. The judgment was, however, affirmed, on the ground that the questions of fact were in reality submitted to the jury, the judge, in conclusion, having observed to them "that if they agreed with him in his view of the facts, they would find for the plaintiff, otherwise for the defendant." Mr. Justice DANIEL, in a very forcible opinion, dissented from the decision.

It is the duty of the court to guard against surprise, when in the course of a trial a right is asserted upon one of two inconsistent grounds; yet this is a matter of practice and discretion, and not a ground for a writ of error. Turner v. Yates, 16 Howard, 14. Nor is the omission of the court below to instruct

PART 2. the jury upon a point of law, unless requested to do so. Peacock v. Dialogue (2 Peters, 1); nor the denial of a prayer, unless the entire prayer, as made, ought to have been granted. Columbia Insurance Co. v. Lawrence, 2 Peters, 25. If evidence offered be admissible for any purpose, it is not error to overrule a general objection to it. The party objecting should in such a case, pray an instruction limiting the effect of the evidence to the particular purpose for which it is admissible. Kelly v. Jackson, 6 Peters, 622. The court is not bound to repeat to the jury essentially the same proposition in different forms. Id. It is not the province of the court to advise the jury concerning the comparative weight of different parts of the evidence. Crane v. Morris's Lessee, 6 Peters, 598.

Special cases.] The English practice (designed to save the delay and expenses incident to special verdicts and bills of exceptions), where a difficulty in point of law arises upon the trial, of permitting general verdicts to be found, subject to the opinion of the court on a special case, has always prevailed in the State of New York. But in one essential particular, the New York practice differed from the English. In England, the case does not contain the evidence given at the trial, but a statement of the facts proved; so as to present merely the questions of law reserved; the case being settled at the trial before the jury is discharged, where, if any difference of opinion arise about a fact, the opinion of the jury is taken, and the fact is stated accordingly. 1 Archb. Practice, 193. But here the practice was to state the evidence at length, from which the court were to draw such conclusions, as in their opinion, the jury ought to have drawn, had they been required to pass upon it. See inter al., 15 Johns. Rep., 409. By a late

rule of the supreme court of New York, this depar- CHAP. 2. ture from the English practice is, however, abrogated. But it is understood still to subsist in each of the national courts in New York; being expressly recognized by a rule of the court for the northern district,1 and indirectly by a rule of the courts for the southern district.

As to the mode of preparing and settling cases, see, post, New trial.

Bill of exceptions-Demurrer to evidence-Special verdict. To entitle a party to take an exception to the admission of evidence, whether written or oral by the court, he must specify the particular ground of his objection to its admission. A mere general objection is insufficient, and will be regarded by the appellate court as nugatory: nor ought objections in this form to be tolerated at the trial. Camden v. Doremus et al., 3 Howard, 515, 530.

The insertion of the charge of the court at large in a bill of exceptions, upon a general exception to the whole charge, is inadmissible, and the judges of the circuit and district courts are expressly forbidden by a rule of the supreme court to allow bills of exceptions thus framed; but "the party excepting" is "required to state distinctly the several matters of law in such charge to which he excepts: and such matters of law, and those only" are to "be inserted in the bill of exceptions, and allowed by the court." Yet, although a bill of exceptions is improperly drawn, if the court can ascertain the substance of the facts, and the questions of law on which 'Appendix, Rule 49, D. C.

'Appendix, Rule 4. See, also, Simpson v. The Westchester Railroad Company, 3 Howard, 553; Barrow v. Rear, 9 Howard, 366.

PART 2. the court instructed the jury are apparent, it will nevertheless proceed to decide the cause.'

An error apparent on the face of the record is open to revision and correction on a writ of error, although there is a bill of exceptions not embracing it: but this rule does not extend to erroneous decisions of the court with respect to the admissibility of evidence. It is not enough to have it appear that the evidence admitted was objected to; it must appear that an exception was taken.2

In the case of Simpson v. Westchester RR. Co., just above cited, on a motion for a certiorari, to bring up parts of the charge which it was alleged had been improperly omitted, it was held that the court had not the power to correct any errors or omissions that might have been made in the circuit court in framing the exception; nor could the court regard any part of the charge as the subject matter of revision except what had been certified to have been excepted to by the judges or one of them, under seal. If the portion of the charge to which the diminution is suggested, was in fact embraced in the exceptions, and the omission of it is a clerical error, then, upon producing a copy of the exception properly certified, the plaintiff in error will be entitled to a certiorari, in order to supply the defect. But the court can in no respect alter or award the exception certified under the seals of the judges of the circuit court, either by referring to the charge at length, or to the notes of the presiding judge.3

Whether a bill of exceptions returned with a writ of error presents for revision any question of law in

'The United States v. Morgan et al., 11 Howard, 154.

3 Suydam v. Williamson et al., 20 Howard, 427.

3

The charge in the case before the court had been delivered by Mr. Justice BALDWIN, who had in the meantime died.