Dissenting.
By the common law and under the statutes, in ordinary actions at law, matter in pais such as the evidence adduced and the ruling thereon with exceptions taken, motions relating to the jury.or for continuance, change of venue, new trial, etc., and the. proceedings thereon including exceptions taken to' rulings, pleadings that were not permitted to.be filed, etc., pne .evidenced by bill of'exceptions as'dis-*259tinguished from the record, proper which contains the pleadings that are duly filed and the rulings thereon, the appearance if any, the process and the return thereon, the verdict and judgment, the adjournments of the court. See also Sections 2903, 2904, Rev. Gen. Stats. 1920.
The statute provides that “the judge of any court of this State, upon a trial at law in said court, shall sign, upon request, any bill of exceptions taken during the progress of the cause and tendered to the court, if said bill as tendered fairly states the truth of the matter and the exception designed to be taken, and the same shall, when certified and signed by the judge, become a part of the record of such cause.” Sec. 2906, Rev. Gen. Stats. 1920.
Rule 97 of the Circuit Court Rules states that “The bill of exceptions shall be made up and signed during the term of the court at which the verdict is rendered or trial had, unless by special order further time is allowed. In ease such special order is made, it shall be entered in the minutes, and in making up the bill of exceptions the fact that, such order was made shall be mentioned therein, or shall otherwise appear in the record.”
Special Rule 3 provides that “Plaintiffs in error and their attorney in framing bills of exceptions, shall conform as near as may be to the following form” — particulars given. While the form prescribed by the Rule provides for all evidentiary and other appropriate matters and the rulings thereon and the exceptions taken, to be inserted in the body of the bill of exceptions preceding the authenticating certificate of the trial judge, the rule does not prohibit the incorpoi’ation into the bill of exceptions as á part thereof of proper matters, by sufficient reference and identification as exhibits attached to the authenticated *260bill of exceptions. Such an authentication is permissible under proper safeguards in view of the provision of the rule that "attorneys in framing bills of exceptions, shall conform as near as may be to the” form prescribed.
While the law requires certainty and truthful verity in legal procedúre to avoid injustice, yet the law contemplates that records of judicial proceedings shall be made to speak the truth without needless technicality, in order that causes may be rightly determined on the merits with reference to substance and without undue or unnecessary requirements as to form and technique.
It appears with reasonable and sufficient certainty from the certificates of the trial judge and the references contained in the duly authenticated transcript, that the deed sought to be ipcorporated into the bill of exceptions as shown by the transcript, was in fact put in evidence and not excluded and that the judge supposed a copy of it was in fact attached to the original bill of exceptions as an exhibit thereto and a part thereof which he expressly made a part of the bill of exceptions by reference and identification. The statute malees a duly authenticated and filed bill of exceptions "a part of the record of such cause;” and if the bill of exceptions as signed and filed does not in fact contain matters properly belonging therein which the trial judge judicially supposed or assumed or believed were contained in the bill of exceptions signed by him, he should in all fairness be allowed to make the bill of exceptions speak the truth by the use of any recognized procedure that secures certainty and justice. This appears to have been done in this case and it should be recognized in order that the cause may be disposed of on its merits.
Taylor, J., concurs.