We regret that the record in this case is so made up as to prevent an examination of the merits of some of the errors assigned, otherwise we should have no hesitation in reversing the judgment.
No exception was taken to the decision of the Court overruling the motion for a new trial, nor is any allusion made to that motion in the bill of exceptions. The plaintiff in error cannot now, therefore, object that his motion for a new trial was disallowed, nor can he avail himself of any error of the court in giving instructions, because the record does not show that the instructions were excepted to at the time they were given.
It appears from the record that several days after the trial took place, and at the time the motion for a new trial was overruled, the defendant below filed his bill of exceptions, which, after giving the evidence in the cause, sets forth the instructions that were given, and concludes as follows : “ To all of which said defendant excepts;” thus showing that the exception was then, for the first time, taken. This Court has repeatedly held that a party, to avail himself of an exception to a decision of the Circuit Court, must take the exception at the time the decision is made, and that the bill of exceptions must affirmatively show that it was taken at that time. Gibbons vs. Johnson, 3 Scam., 63; Miere vs. Brush, ibid, 23; Leigh vs. Hodges, ibid, 17. We are now called upon to change the rule which has been adopted, and to presume that an exception was taken in proper time, when the Judge has signed the bill of exceptions, and it does not show upon its face at what time the exception was taken, or rather, when, as in this case, it does show, that it was not taken at the time the decision complained of was made. This we cannot do. The case of Gibbons vs. Johnson, was precisely like this, and we decided at the last term of the Court at Ottawa, in the case of Evans vs. Fisher, 5 Gil., 453, that a bill of exceptions, in all cases, should appear on its face to have been taken and signed at the trial; and if for any cause it is not then done, it should be executed nunc jpro tunc, so as to appear to have been taken at the trial.
But we are not disposed at this time to enter into a discussion of the propriety of the rule adopted. It has been established by a number of decisions of the Court, and acted upon for several years as a settled rule of practice. In such a case the rule ought not to be changed by the Court, even admitting that at the beginning it would have been better if a different presumption had been indulged, and a different rule established. The fifth instruction was clearly erroneous, but inasmuch as it was not ex-eepted to when given, the giving of it cannot now be assigned for error.
It is also assigned for error that the Court improperly sustained the demurrer to the fourth plea. It appears from the record that when the demurrer was sustained to that plea, an order was entered by the Court that the defendant answer over, and he did answer further, by subsequently filing other pleas. According to the decision of this Court, in the case of Wann vs. McGoon, 2 Scam., 74, the filing of the subsequent pleas might well be regarded as a waiver by the defendant of his fourth plea; but whether this be so or not the plea was clearly bad. It stated that part of the lumber, thirty thousand feet, was offered to the plaintiff when demanded, and that the plaintiff was informed and advised that all the balance of said lumber should be furnished as fast as he could raft the same. Had issue been taken upon this plea, one point of inquiry would have been, whether the plaintiff was informed and advised as alleged in the plea—a matter wholly immaterial in the case. The plea, to have been good, after setting forth the offer to furnish part of the lumber, should have averred that the defendant was ready to furnish the balance as fast as the plaintiff could raft it.
The agreement is not to be understood as containing a covenant on the part of Dickhut, that he had the whole one hundred and ten thousand feet of lumber on the bank of the Wisconsin river, at the time of making the contract for rafting the same, but a fair construction of the contract required that the lumber should have been ready as fast as Durrell could raft it. Judgment affirmed.
Judgment affirmed.