as follows:
I dissent from so much of the opinion of the majority of the court, as holds that it was necessary to take a special exception to the refusal of the court to give the defendant’s instruction. My opinion is, that the bill of exceptions taken to the decision of the court overruling the motion for a new trial, brings before this court every matter which the court below could consider on that motion. ’
The court could certainly, on the motion for a new trial, correct its own error, either in giving a wrong, or in refusing a correct instruction, whether the exception was specially taken at the time or not. The court, then, having committed an error, and having the power to correct it, and failing to do so, the question is, can such refusal be made the ground of an exception ; and if of an exception, can it not be made á ground of error in this court ? I think it can.