ON PETITION POR A REHEARING.
Elliott, J.— The judgment in this case was reversed on the 25th of January last. The case is presented to us again on a petition for rehearing. It was reversed on the evidence, in connection with an error in the instructions given *358by the coui’t to the jury. A rehearing is urged on the ground that the exception to the instrjictions of the court Avas not properly taken, and that the instructions should therefore not have been noticed by this court. The exception Avas taken by a bill of exceptions? duly alloived and signed by the judge before Avhom the cause Avas tried. The instructions are copied into the bill, after Asdiich it is said, “ which instructions are excepted to at the time by the defendant.” As we understand the record, the instructions as given by the court constituted an entirety. They Avere not numbered or divided into several distinct propositions. The statute requires that all written instructions given by the court shall be signed by the judge and filed as a part of the record. There are two modes of taking exceptions to the action of the court in either giving pr refusing instructions. One of these is by stating the exceptions in a formal bill of exceptions, of which the instructions are made to form a, part. Such Avas the mode adopted in the present case. And as the instruction ivas not divided into several propositions and numbered by the court, we think the exception Avell taken, and applied to every part of the instruction excepted to.
The other mode is that designated in section 325 of the code, in Avhich it is declared that Avithout a formal bill of exceptions,, “it shall be sufficient to write at the close of each instruction, ‘ refused and excepted to pr ‘ given and excepted to/ which shall be signed by the party or his attorney.” 2 G. & H. 201.
In the case of Jolly v. The Terre Haute Drawbridge Co., 9 Ind. 417, cited by counsel, the question decided, so far as it related to instructions, refers alone to the assignment of the error, and not to the exception.
In Garrigus v. Burnett, 9 Ind. 528, and Branham v. The Slate, 11 Ind. 553, the instructions consisted of a large number of separate and distinct propositions. The exception - wa,s in general terms to all of them, and it was held that the exception. Avas unavailing, if any one of the instructions *359was correct. This rule is sufficiently rigorous when applied to separate and distinct instructions, and should not, we think, be applied where, as in this case, the court makes its charge an entirety.
But if the exceptions were not well taken, the petition for a rehearing should still be overruled. The verdict of the jury was clearly contrary to the evidence. We so held, in effect, in the former opinion.
The petition for a rehearing is overruled.