Dissenting Opinion.
McCabe, C. J.I concur in the opinion of the majority on all points except one, and that is that the evidence is not in the record. I am of opinion that it is for the following reasons: I concede that the previous decisions of this court warrant the conclusion that the original longhand manuscript of the evidence and its in*508cidents, if not actually embodied in the bill of exceptions whén it is signed, but is ordered to be inserted by a direction to the clerk to (here insert), in brackets, and is afterwards so ihserted or set into the bill of exceptions by the clerk in making up the transcript, that it is not properly in the record; but I think those decisions are so clearly wrong that they ought not to be followed any longer.
In Ohio, etc., R. W. Co. v. Voight, Admr., 122 Ind.288, cited in the prevailing opinion, this court said: “At common law a. bill [of exceptions] was required to be perfect in all its parts before the attestation. * * If a dispute were to arise in this cause as to whether what purports to be the longhand manuscript of the evidence, found with the papers, is the manuscript referred to in the bill of exceptions, we would not be able to settle that dispute by the record before us.”
In Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, this court said: “Contrary to the rule which prevailed prior to the enactment of the code, it is now competent to incorporate a paper or document into a bill of exceptions without copying it into the bill. This may be done by so describing or designating it as that the clerk may know to a certainty the particular paper or document intended to be inserted, and by designating by the words (here insert) the place where it is to be copied by the clerk in making the transcript. ’ ’ Citing Kesler v. Myers, 41 Ind. 543; State, ex rel., v. President, etc., 44 Ind. 350; Irwin v. Smith, 72 Ind. 482. To the same effect is Stevens v. Stevens, 127 Ind. 560.
In Atchison, etc., R. R. Co. v. Wagner, 19 Kan. 335, Brewer, J., speaking for the court, says: “When the bill receives the signature of the judge it should be complete, and this we understand to be the substance * of all the decisions. There is to be no further discussion, no *509further discretion; the record is made. * * It is * apart of the record, butthe record must speak for itself. It must show on its face all that it is. It must be its own evidence of all that it contains. No part of its contents may rest upon the discretion of the clerk, the recollection of the judge, or the testimony of counsel. * * Where a deposition or other writing is to be made a part of a bill it can be referred to with such marks of identification as to exclude all doubt. * * * We appropriate the language of the Supreme Court of the United States in the case of Leftwitch v. Lecann, 4 Wall. 187, in which the court says: ‘If a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the bill as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.’ And this means of identification must be obvious to all. No mere memorandum, intelligible as it may be to a single person, even the clerk, but indicating nothing to any one else, will be sufficient. They must be such that any one going to the record can determine what document is to be inserted, or, after insertion, that the clerk has made no mistake. The record must prove itself, and not the record and the testimony of the clerk. The clerk changes; the record endures. And long after judge and clerk are both gone, the record, if good, must carry on itself the evidence of its own integrity.”
It was held by this court in Hull v. Louth, 109 Ind. 315, that it was the proper practice prescribed by section 1410, R. S. 1881, for the clerk in making up the transcript to take from the bill of exceptions the longhand manuscript and put it into the transcript of the record without being copied, and that the balance of the bill of exceptions must be copied. That was in 1886. That *510remained the settled law and practice until the 19th day May, 1892, when McCoy v. Able, 131 Ind. 417, was decided by this court, wherein this court partially overruled Hull v. Louth, supra, to the extent of authorizing in any case where a bill of exceptions embracing nothing else but the longhand manuscript and its incidents to be set into the transcript without being transcribed there-into. So that as the law now stands in all cases where other matters are to go into the bill, as was the case here, the manuscript must be torn apart from the bill by the clerk and set into the transcript, and all other parts of the bill must be copied into the transcript, and the original of those parts of the bill must remain on file in the court below. That practice was the one followed in this case by the clerk, and correctly, too, if the decisions above referred to are to stand. Therefore, to send here the original bill that yet remains in the clerk’s office below would afford no greater or better information to this court as to the connection the several papers composing the supposed bill had to each other than is afforded by copies of them which the clerk has returned. Those copies, with the clerk’s accompanying statement, impart all the information to this court that it could have acquired had it been able to look into the clerk’s office below.
All this trouble about this bill of exceptions is the legitimate outgrowth of what seems to the writer a misconception by this court of the true intent and meaning of section 1410, R. S. 1881, authorizing the incorporation of the original longhand manuscript of the oral evidence and its incidents into a bill of exceptions. That misconception began in Wagoner v. Wilson, 108 Ind. 210.
It has been followed ever since down to McCoy v. Able, supra, and perhaps later cases. Under that practice, inasmuch as the bill of exceptions is to be mutilated and *511torn apart by the clerk as soon as he comes to make up the transcript and parts of it after separation are to be left remaining on file in the clerk’s office and another part to be set into the transcript and sent up here, how natural it would be for the attorney to conclude that it is useless for him to do to-day what the clerk is required by law to undo to-morrow or next week when he comes to make up the transcript, to leave that thing undone, and instead of a completed and perfect bill of exceptions to leave a bundle of separate pieces of paper in the clerk’s office for a bill of exceptions, and thus create a deal of confusion that now prevails under that practice.
It is a familiar principle in the construction of a statute to look to other statutes upon the same subject and to existing law upon that subject.
In the case last cited after citing section 626, R. S. 1881, this court said: “This section provides that in making up a bill of exceptions, it shall not be necessary to copy a ‘written instrument or any documentary evidence’ into the bill, but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words ‘here insert.’
‘ ‘A somewhat liberal construction has apparently been given to the phrase ‘written instrument or any documentary evidence’ as used in this section, but we should hesitate to affirm that these words would embrace the official reporter’s original longhand manuscript of the oral evidence taken in a cause. However this may be, the provision referred to in section 626, * relates to such instruments and evidence as are thereafter to be transcribed by the clerk in making the transcript, and not to the reporter’s longhand manuscript when that is to be certified up under section 1410. The paper or documentary evidence which may be inserted by the clerk, at the place designated, when the bill is copied into the tran*512script by him, must be so identified and described in the bill, as that the clerk may know to a certainty the particular instrument or document which he is to transcribe and insert at the point indicated. This of course, has no application to a case where the original manuscript itself is to be incorporated into a bill and certified to this court. In such a case there is nothing for the clerk to transcribe or insert. ’ ’ The error here is in ascribing to the word “insert” the same meaning, and no broader meaning, than the word “transcribe.” The section of the statute referred to does not use the word “transcribe,” but uses the word “insert” alone. And Webster defines the word as follows : ‘ ‘To set within something; to put or thrust in; to introduce; to cause to enter, or be included or contained; as to insert a scion in a stock; to insert a letter, word or passage in a composition; to insert an advertisement in a newspaper.”
That is all of the definition of the word “insert” given in Webster’s Unabridged Dictionary. So that while the word may mean to write in or transcribe, its meaning is clearly broad enough to authorize the official reporter’s original longhand manuscript of the oral evidence and its incidents to be set into the transcript by the clerk, if its appropriate place be designated by the words “here insert,” and if it be on file in the clerk’s office and be properly and clearly identified by the bill, so that the clerk may know to a certainty that it is the document referred to.
This court, in Patterson v. Churchman, 122 Ind. 379, cited in the prevailing opinion, speaking of said section 626, said: “The statute referred to above is an innovation upon the common law, and as it is not a remedial statute, must have a strict construction,” and then went into, a definition of the phrases “written instrument” and “documentary evidence,” concluding that the of*513ficial reporter’s original longhand manuscript was comprehended within neither phrase.
While it is true that that section, as well as section 1410, is an innovation upon the common law-, I am constrained to believe that this court erred in holding that either one of the sections was not remedial, and therefore to be construed strictly. It is only statutes that are not remedial that innovate upon the common law, that must be strictly construed. Sutherland Stat. Con., section 401.
The same author, at section 207, says: “Remedial statutes are such as the name implies, embracing a great variety in detail; those enacted to afford a remedy or to improve and facilitate remedies existing for the enforcement of rights and the redress of injuries; and also those intended for the correction of defects, mistakes and omissions in the civil institutions and administrative polity of the State.”
It is apparent to all that both sections are remedial, according to this definition.
The author, in the same section, then goes on to say what this court has frequently adjudged, “that remedial statutes are to be liberally, beneficially and largely construed to suppress the evil and advance the remedy.” Tousey v. Bell, 23 Ind. 423; Marion, Tp., etc., Co. v. Norris, 37 Ind. 424.
The obvious purpose of both of these sections was to lessen the burdens of the due administration of justice, making the same plainer, easier and at the same time preserving all the certainty, as to the contents of the record, that existed before, and enabling parties to preserve and put into the record a more exactly correct memorial of everything that took place on the trial than ever before, and with much less cost and labor.
*514Now what was the construction this court had placed on the phrase “written instrument” in section 626 when section 1410 was enacted? It is true this court had decided that a judgment was not a “written instrument” within the meaning of another section of the code where that phrase occurs, and that such phrase in that section embraced and meant such instruments as deeds, mortgages, bonds, written contracts, promissory notes, bills of exchange, etc. That section had reference to such instruments as were made the foundation of a suit. But the question is, how had the court construed the phrase in this section? The undeniable answer is that this court had construed that phrase in this section to embrace and authorize the incorporation into a bill of exceptions by a “here insert” every writing of every description which might become necessary to be incorporated in a bill of exceptions, whether it be a written instrument within the restricted sense or otherwise. For instance, it is well known to the bench and bar throughout the State, that if a complaint, answer or reply, or all of them, be stricken out in the trial court on motion, no question could be raised in this court as to the propriety of that action unless such papers are brought into the record by being incorporated in a bill.
It is believed that no lawyer or judge in the State ever doubted that such complaints, answers and replies could be and were incorporated in bills of exceptions by a direction to “here insert” and without being written out in full in the bill before being signed. And yet no one, I presume, will contend that such papers are “written instruments” within the restricted sense applied to that phrase in section 362, R. S. 1881, which is section 782, R. S. 1852. The same is true of motions, affidavits, offers to confess judgment, interrogatories propounded to a party and answers thereto, suppressed depositions, in*515structions to the jury, and many other papers and writings were constantly being incorporated in bills of exceptions under the provisions of section 626, by a direction to “here insert” when section 1410 was enacted and the propriety and correctness of that practice was never questioned, either before or after the enactment of section 1410. In short, it is quite safe to say that prior to the enactment of section 1410 there was no writing that became necessary to be incorporated in a bill of exceptions that the practical construction given to section 626 did not permit to be incorporated in a bill by a direction to “here insert.” And yet no one would think for a moment of calling the papers just named written instruments within the restricted sense contemplated in section 362, R. S. 1881.
This court has adjudged that a practical construction given to a statute by long continued action and acquiescence therein is equal to positive law. Board, etc., v. Bunting, 111 Ind. 143.
The very first definition of the phrase ‘ ‘written instrument” given by Berkshire, J., delivering the opinion on petition for rehearing in Patterson v. Churchman, supra, from Anderson’s Dictionary of Law is as follows: “3. Anything reduced to writing.” And that would comprehend and embrace all writings necessary to be incorporated in a bill of exceptions.
I am utterly unable to bring my mind to the belief that the Legislature, in enacting section 1410, intended to authorize and require so uncivilized a practice as the disemboweling a record after it is made, the commission of vandalism upon a bill of exceptions which it first requires to be complete, thus destroying the means of knowing what the record was before it comes to this court.
I, therefore, feel unable to avoid the conclusion that *516the Legislature had no idea in enacting section 1410, that the official reporter’s longhand manuscript of the oral evidence and its incidents was a writing so far different from other writings that it might not and ought not to be incorporated in a bill of exceptions precisely in the same manner as other writings were then being incorporated by the prevailing practice. And that prevailing practical construction of section 626 so as to make the phrase “written instrument” include all writings which became necessary to be incorporated in a bill of exceptions was justified by the decisions of this court both before and after the enactment of section 1410.
In City of Evansville v. Summers, 108 Ind. 189, quoting from a case in 8 Indiana, this court said: “It is a settled rule of interpretation of statutes that the application of a single statute may be enlarged or restrained to bring the operation of the act within the intention of the Legislature when violence will not be done by such interpretation of the statute.” See, also, Storms v. Stevens, 104 Ind. 46; Ledgerwood v. State, 134 Ind. 81.
We have already seen that the meaning of the word “insert” is wide enough to justify placing the longhand manuscript into a bill by a direction to “here insert;” indeed we have seen the primary signification of the word “insert” is “to set within something.” And the code requires that “words and phrases shall be taken in their plain or ordinary and usual sense.” R. S. 1881, section 240.
Therefore, it seems to me it was an error in Wagoner v. Wilson, supra, to hold in effect that the word “insert” meant to “transcribe,” and hence the original being required to be put into the bill, the longhand manuscript could not be put in under a direction to “here insert.”
The other construction, while it seems to me would be the more natural and correct one, would simplify the ad*517ministration of justice in this respect very greatly, eliminate all confusion, and leave on file in the clerk’s office below an unmutilated bill of exceptions, whereby all disputes could be settled concerning the condition of the whole bill before the transcript was made out. Such a construction would be in harmony with the spirit of the code. I am not unmindful of the familiar principle often declared by this court, that it is more important that many questions of mere practice be settled than how they are settled.
Filed March 14, 1895.But this is a question of practice that is nearly as important that it be settled right as that it be settled at all. Though it has been settled, it did not remain settled, and the way it has been attempted to be settled has given rise to a vast number of controversies in this court over that question, and still they come. Settled the other way, it is believed that a vast amount of the time of this court spent in looking into and settling these controversies could and would be devoted to the consideration of the merits of the respective claims of litigants in this court, instead of being devoted to these mere technical controversies about practice. Therefore, the writer is in favor of overruling Wagoner v. Wilson, supra, on this point and the subsequent cases that have followed it, and in that event the evidence in this case would be properly in the record.