
    Jones and Clarke against The Insurance Company of North America.
    Monday, December 27th.
    A bill of exceptions to the charge may be tendered at any time before the jury have delivered their verdict in open court; even after they have agreed upon it and sealed it up.
    AFTER the sealing up of their verdict in this case by the jury~ but before the delivery of it in court, E. Tilghman for the defendants tendered a bill of exceptions to the charge of the court delivered by the chicfjustice; and the question was whether it was in time.
    Dallas for the plaintiffs objected that it was too late.
    The statute of West. 2. 13 Ed. 1. C. 31. which gives the bill of Exceptions, specifies no time; but it must be tendered at the trial. Bull. N. P. 315.; Wright v. Sharp 
      
      ; Tidd’s Prac. 312. 314.; and at the trial means before verdict. Exception shall not be allowed after verdict, Tidd 314.; and the uniform practice has been to tender the bill at the time the exception is taken, Mostyn v. Fabrigas 
      
      , Symmers v. Regem 
      ; though it may be sealed afterwards. Money et al. v. Leach 
      
      . The same point is expressly ruled in Wright v. Sharp, where Holt C. J. and Powel J. say it must be prayed and minutes of it taken at the time of trial, and the cause may go on nevertheless; it may be reduced to form afterwards. The judge is not obliged to seal it unless it is offered at the trial. Pocklington v. Hatton 
      
      . It is compared to a demurrer to evidence and to a special verdict, both of which must be minuted at the time. Gibson v. Hunter 
      
      . The judges should set their seals that such exceptions were taken at the trial; and the writ to acknowledge the seal presumes that at that time the exceptionable matter was noticed. Money v. Leach. The precedents all justify these positions. Bull. N. P.319. Lill. Ent. 249, 250.; and every evil which can arise from a bill of exceptions after a common verdict, will arise after one of this character, sealed up for delivery.
    
      E. Tilghman
    
    stated that the objection Was taken as soon as the court opened, and before the jury appeared at the bar. A verdict had indeed been agreed upon, and sealed up for the converbenee of the jury; but such a verdict is not given until the jurors have parted with it, and it is read and affirmed in open court. 3 Bl. Com. 377. Until this last step the trial continues; the tidal is over when this last step is taken. By this undeniable position all Mr. Dallas’s cases are done away; all of them admit that the exception will answer if taken at any time before verdict.
    But there is also an important difference between an exception to evidence, and an exception to the charge. In the first case if it be not made when the evidence is offered, a reliance is placed on the sufficiency of the evidence, and better or additional evidence is not sought; the exception taken at a late period would therefore if valid strip the party of his support when he 'no longer had the opportunity to procure more. But before the charge each party is presumed to have exhausted his evidence, at least so far as is material; and no injury can accrue to either party by a subsequent exception, if it be made before verdict. By this distinction too the cases read are explained away. Tidd 314. is of an exception to evidence; so Bull. N. P. 315. Wright v. Sharp, and Symmers v. Regem. Mostyn v. Fabrigas is not to this point either way; nor is Money v. Leach; and the precedents cited shew the exception to have been taken even subsequent to the verdict. Bull. N. P.319. Lill. Ent. 250.
    
      Dallas
    
    in reply observed that there was no distinction in the books between charge and evidence; and that the cases of Pocklington v. Hatton, and Wright v. Sharp related to the charge.
    
      
       11 Mod. 175. 1 Salk. 288. S. C.
      
    
    
      
      
         2 W. Bl. 929.
    
    
      
      
         Comp. 494.
    
    
      
      
         1 W. Bl. 356. 3 Burr. 1692. S. C
      
    
    
      
       8 Mod. 220.
    
    
      
       2 Id. Bl. 200.
    
   Per Curiah.

A jury may depart from a privy verdict. Un-

til it has been opened and confirmed in court, it is in fact no verdict; and the authorities and precedents which have been read shew undeniably that if the exception to the charge is taken at any time before verdict it is in season. We cannot refuse to allow the bill in this case; and we are happy to do it as it will bring the principal question before a higher tribunal.  