
    Robert E. Lockhart v. Uella Brown.
    An exception to the charge of the court can not be saved, so as to make it reviewable on error, by merely making the charge and exception a part of the journal entry in the case.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Adams county.
    R. E. Lockhart appealed to the probate court from the final decision of the trustees of Green township as to the location of a ditch, partly through his lands, as prayed for by Della Brown. In the probate court on appeal, the ditch was ordered to be located and constructed. Erom the journal entries in the probate court, it appears that on the trial, Lockhart produced evidence to the jury, tending to shoiv that his adjoining lands would be incidentally injured by the location of the ditch; and that he thereupon requested the court to give to the jury certain instructions which are set out in the entry, and which the court refused to do, to which refusal he excepted. But there was no bill of exceptions taken on the trial, and ordered to be made a part of the record in the case.
    The case comes here regularly through the court of common pleas and district court, in which courts, on error, the judgment of the probate court was affirmed.
    By this proceeding the reversal of the judgments below is sought, on the ground that the probate court erred in its charge to the jury.
    
      JEvans &¡ Naylor, and John K. Billings, for the motion.
    
      Wells, Collings, and O. J. Dodds, contra :
    None of the errors assigned in the petition appear in a bill of exceptions, and no bill of exceptions is made part of the record.
    
      The only errors assigned in a petition in error which a reviewing court can notice, are those excepted to and set out in a bill of exceptions. Huston v. Huston, 29 Ohio St. 600; 17 Ohio, 495; 6 Ohio St. 182. The bill of exceptions must be a part of the record. 2 S. & C. 1155; 21 Ohio St. 82; 30 Ohio St. 208; 27 Ohio St. 44.
   Dv the Court.

Section 293 of the code applies only where the decision would properly be entered of record, if no exception was taken to it; and is not intended as a substitute for a bill of exceptions, where the exception relates to matters occurring during the trial. The exception iu this case relates to the charge of the court to the jury, which was improperly made part of the entry, and can not, therefore, be regarded on error.

Motion overruled.  