*263On Petition for Rehearing.
Montgomery, J.Appellant’s counsel have presented an earnest argument urging a reconsideration of our holding in the original opinion, that instructions included in an original bill of exceptions containing the evidence, certified upon appeal, cannot be considered. In deference to this contention we deem it appropriate to elaborate the reasons which induced our conclusion.
8. A record for appeal, under our code, ordinarily consists of a copy or transcript of all papers, entries and proceedings in the cause in the lower court, or so much thereof as appellant in writing requests, duly certified and sealed. §§690, 691Burns 1908, §§649, 650 R. S. 1881. This is the general rule, and any original paper, document or entry incorporated in the transcript will be disregarded, unless express statutory authority for embracing it can be found. The clerk of the court is made the custodian of its records and files, and he may not certify original papers for use on appeal, except where the legislature has seen fit to confer such special authority. Reid v. Houston (1874), 49 Ind. 181, 183.
7. The first innovation upon the rule requiring transcripts of all papers and proceedings was made by the act of March 7, 1873 (Acts 1873, p. 194), providing for the appointment of an official reporter to take down the evidence in a cause, and for the filing with the clerk of a longhand copy thereof, and authorizing such clerk, in case of an appeal to the Supreme Court, to certify the same without copying, when so required, after such long-hand manuscript had been incorporated in a proper bill of exceptions. The act of 1873 was substantially reenacted in 1881 (§1405 R. ,S. 1881). Under this statute it was held that the longhand manuscript copy of the evidence could not be certified by the clerk, unless it had been first incorporated in the bill of exceptions (Galvin v. State, ex rel. *264[1877], 56 Ind. 51), but when so incorporated and filed it might be taken from the remaining parts of the bill of exceptions, certified, and made a part of the record on appeal to this court without being copied. Hull v. Louth (1887), 109 Ind. 315, 337. This decision required the formal parts of the bill of exceptions and all other papers and proceedings to be transcribed by the clerk.- This rule was modified by a later ease, in which the court said: “A further contention of the appellees’ counsel is that the clerk cannot certify to us the original bill of exceptions containing the reporter’s longhand manuscript. We are referred to the case of Hull v. Louth [1887], 109 Ind. 315, where it was said that the longhand manuscript may be taken from the bill of exceptions and certified up, without" copying, by the clerk. In our judgment the practice adopted in this case is preferable to that suggested in Hull v. Louth, supra. We adjudge the better mile to be this: Where a bill of exceptions upon a ruling denying a new trial is taken for the purpose of getting the stenographer’s report of the evidence, with its incidents, into the record, the original bill may be certified up to this court as part of the record. All there is of such a bill, besides the report of the evidence, is composed of formal parts and brief recitals, so that little would be left to be copied if the report of the evidence were taken out. Confusion is avoided by sending up the bill without detaching the evidence, and only a very little matter outside of the report of the evidence comes up -in its original condition. It is much more consistent with principle, and much safer to require the entire original bill to be certified, than it is to devolve upon the clerk the duty of determining what shall be left in and what taken out. * * * But the rule we declare does not have, and cannot be made to have, any application to any other bills of exceptions except such as are prepared for the purpose of bringing into the record the longhand manuscript of the official reporter and its necessary incidents. All other bills of exceptions must be copied *265by the clerk. Nor can the rule apply to a bill of exceptions wherein other matters than the longhand report and matters legitimately connected therewith are sought to be brought into the record. In order to come within the rule stated, the bill of exceptions must be confined to the single office of exhibiting the report of the evidence and the matters directly and properly pertaining thereto.” McCoy v. Able (1892), 131 Ind. 417, 422. The court subsequently held that an original bill of exceptions properly certified, which contained instructions given and refused and exceptions thereto, in addition to the longhand manuscript of the evidence, was not a proper part of the record, and could not be considered for any purpose. Holt v. Rockhill (1896), 143 Ind. 530.
It was said in Hull v. Louth, supra, that “where the longhand manuscript of the evidence is filed with and as a part of the bill of exceptions, that is a sufficient filing.” This statement was, in effect, overruled by later cases, which declared that the filing of the longhand manuscript of the evidence must be antecedent to its incorporation and filing with the bill of exceptions. Holt v. Rockhill, supra; DeHart v. Board, etc. (1896), 143 Ind. 363; Smith v. State (1896), 145 Ind. 176; Carlson v. State (1896), 145 Ind. 650. Frequent failures first to file the manuscript of the evidence, and the difficulty of determining whether there had been two filings or one, and, if two, which was first in time, and also a question whether it was the right or duty of the reporter to include documentary evidence in his manuscript of the oral testimony, prompted the statute of March 8, 1897 (Acts 1897, p. 244, §657 Burns 1908). The substance of this act was explained in the case of Adams v. State (1901), 156 Ind. 596, 600, where it was said: “The taking down of the evidence and the noting of exceptions, under this latter act, is not limited to shorthand reporters to be appointed by the court, but such services may be performed by any one, and there is no requirement that the evidence shall be first filed *266with the clerk before it can be incorporated into a bill of exceptions.” See, also, Weakley v. Wolf (1897), 148 Ind. 208. It was also held that the rule as to the contents of the bill was not broadened, and that instructions given and refused, incorporated in the general bill of exceptions which was certified up on appeal without copying under this statute, formed no part of the record. City of Michigan City v. Phillips (1904), 163 Ind. 449; Sharp v. State (1903), 161 Ind. 288; Baut v. Donly (1903), 160 Ind. 670; Andrysiak v. Satkoski (1902), 159 Ind. 428; Maynard v. Waidlich (1901), 156 Ind. 562; Adams v. State, supra; Leach v. Mattix (1897), 149 Ind. 146, 148.
9. This act makes it the duty of the clerk of the trial court to embrace such original bill, instead of the copy thereof, in the transcript only when requested to do so by the party appealing. In taking appeals under this act, it'frequently occurred that the original bill was certified without request, or the precipe called for a transcript, and the original bill of exceptions was certified, or vice versa, and the court held that the record must be made up in conformity with the requirements of the precipe. Boos v. Lang (1904), 163 Ind. 445; Tomlinson v. Bainaka (1904), 163 Ind. 112; City of Alexandria v. Liebler (1904), 162 Ind. 438; Mankin v. Pennsylvania Co. (1903), 160 Ind. 447; Drewe v. Town of Geneva (1902), 159 Ind. 364; Berry v. Chicago, etc., R. Co. (1902), 158 Ind. 668; Marcy Mfg. Co. v. Flint & Walling Mfg. Co. (1902), 158 Ind. 173; Chestnut v. Southern Ind. R. Co. (1901), 157 Ind. 509; Johnson v. Johnson (1901), 156 Ind. 592; McCaslin v. Advance Mfg. Co. (1900), 155 Ind. 298; Brown v. Armfield (1900), 155 Ind. 150.
The frequency of such errors in the preparation of records led to the passage of the act of 1903, “concerning proceedings in civil procedure.” Section seven of that act (Acts 1903, p. 338, §667 Burns 1908) provides: “That in case an original bill of exceptions shall be incorporated into the *267transcript of the record of any cause on appeal to the Supreme Court or the Appellate Court, such original bill of exceptions shall, in every case, constitute and be considered as a part of such transcript, the same as if copied therein by the clerk, whether such original bill or a copy thereof be specified in the precipe, or otherwise directed to be incorporated into such transcript.” In construing this statute this court said in I Filed Workman v. State, ex rel. (1905), 165 Ind. 42, 51: “The evident purpose of section seven of the act of 1903 [§667, supra], with regard to the point under consideration, was to make the original bill of exceptions when embraced in and certified with the transcript on appeal a part of the record in all cases when by written precipe a party had requested the clerk below to certify either the original or a transcript thereof, and also when a party had requested, either orally or in writing, a complete transcript of the cause.” Said act of 1903 applies only to civil procedure, and expressly provides that the act of 1897, supra, was not thereby repealed. This act manifestly had reference to bills of exceptions relating to the evidence and matters connected therewith, and did not purport to authorize the incorporation of any other matters in such original bills for use on appeal.
7. *2688. *267Section 289 of the act of 1905, “concerning public offenses” (Acts 1905, pp. 584, 648, §2165 Burns 1908), contains an exact copy of that part of the civil act of 1903, supra, before quoted; and the evident purpose of the statute was merely to make the original bill of exceptions containing the evidence and its incidents a part of the record on appeal, when certified up by the clerk upon request, without regard to the form of the precipe. All the preceding litigation and legislation had related to but one bill of exceptions, and that the general bill containing the evidence and matters directly connected therewith. This document, with the introduction of shorthand reporters, frequently became of very great length, and the transcribing, *268for the purposes of appeal, a needless expense, since its custody could be as safely and conveniently intrusted to the Clerk of the Supreme Court as to the clerk of the circuit court. The legislature, in its discretion, doubtless might authorize the certification of other bills of exceptions and original papers for use on appeal, but the same reasons, freed from likelihood of inconvenience, do not obtain. The act of 1897, supra, is still in force, and must be construed with the later acts upon the same subject. It points out the nature and character of the bill of exceptions which may be certified without copying, and it is the only statute which in terms makes it the duty of the clerk to take from the files, on request, and certify an original paper belonging to his office. It is true that a copy of any paper should not import verity with more certainty than the original, but other considerations enter into the practice of removing from the proper custodian the papers and files of a cause, and the propriety of making such innovations must be found by the legislature, and not by the courts. The decisions of this court for thirty years distinctly marked and defined the limitations of the departure from the general rule which was authorized, and if the General Assembly deemed it proper to require clerks of circuit c.ourts to certify to this court on appeal any original papers other than the one designated in the act of 3 897, supra, it could and doubtless would have plainly so declared. We can find from no view of the subject any intention to require or authorize the certification by the clerk of any document or paper without copying, other than the bill of exceptions containing the evidence, with the'rulings of the court as to the admission and rejection thereof and to the competency of witnesses, and objections and exceptions thereto. Any other matters contained in such original bill must, under the authorities, be treated as surplusage and be disregarded. Marshall v. Matson (1908), 171 Ind. 238; Williams v. State (1908), 170 Ind. 644; Maynard v. Waidlich, supra; Town of Lewisville v. *269Batson (1902), 29 Ind. App. 21; City of New Albany v. Lines (1899), 21 Ind. App. 380.
“VVe find no warrant to depart from the original holding, that the instructions in this case are not properly before us, and appellant’s petition for a rehearing is overruled.