
    M’Callen vs. Sterling.
    A judge of the circuit court is not bound to seal a bill of exceptions containing a part of bis general charge to the jury on the whole facts of the case, unless it set forth the facts on which that charge was grounded.
    It is discretionary with the judge of the circuit court whether he will seal a bill of exceptions, unless it contain his whole charge and the whole testimony upon which the charge was made.
    In this case the counsel for the plaintiff tendered to the circuit judge for signature a hill of exceptions, on his refusing to grant a new trial. This stated only so much of the charge (entirely omitting the evidence) as to show that the judge had not charged the jury as requested, on particular points raised by the counsel in his argument to the jury. The court stated to the counsel, “that as this was a motion for a new trial, he should set out the evidence in the bill of exceptions, and the whole charge of the court, to the end that the grounds for refusing a new trial might appear to the revising court, in the same light they appeared to the judge who tried the cause, and that it ought the more especially to be done in this case; for admitting, for the sake of argument, the counsel was right as to the points he raised, yet the court was clearly satisfied, from the whole facts and circumstances of the case, a new trial ought not to be granted.” But the counsel utterly refused to state the evidence in the cause in the way suggested by the court, and tendered his bill of-exceplions to the opinion of the court in deciding that he ought to set out the evidence in the cause, as above suggested by the court. And from the decision and judgment of the circuit court, the defendant prosecuted his appeal in the nature of a writ of error to this court.
    
      Thomas L. Williams, for the plaintiff in error.
    
      Robert M. Jlnderson, for the defendant in error..
   Ca'troÑ, Ch. J.,

delivered the opinion of the court.

1. Was the circuit court bound to seal a bill of exceptions containing a part of his general charge to the jury on the whole facts of the case, without setting forth the facts on which that charge was grounded, or any part of the facts? It must be recollected, that the jury was charged, retired, deliberated and found a verdict. A new trial was moved for, because it was alleged the court had misdirected the jury on points of law arising on the facts. By our constitution, article 9, section 4, the judge could not, as is the English practice, instruct the jury how to find on the facts, but he had the right to state the testimony, and then declare the law arising on a case made out by the proof. The charge-in. every case" should apply strictly to the facts proved, or rather, the case made out; at least as much so as may be, without charging how the matters of fact are. How a revising court could determine whether the charge was lawful or otherwise, without any of the facts being stated, it is difficult to perceive. In many cases truly such parts of the proof need only be stated as raise the question to a particular point to which the charge applies, if that part of the charge asserts a principle of law, disconnected from the other parts. But when the whole charge must be taken together to fairly understand any part of it, then the entire charge should be stated in the bill of exceptions. And if the charge cannot be fully understood without stating the whole of the evidence, then it should be set out. Of this, in cases where a new trial is moved for, the court trying the cause is the proper judge, a'nd must of necessity exercise an exclusive discretion. But suppose all the evidence and the entire charge had been set out, and yet the circuit judge had refused to sign and seal the exceptions, would this be any cause for reversing the judgment and setting aside the verdict? We are called upon to determine the rights of the parties; and this we are to do upon the facts shown by the record. This record shows nothing of the charge to the jury on the facts, but only that the circuit judge refused to seal such a hill of exceptions as the plaintiff’s counsel desired, and to the refusal to seal the bill of exceptions, exception is taken. What the exceptions tendered were, we are uninformed by the record. The record shows a controversy between the circuit judge and the plaintiff’s counsel, on a matter of practice j but which cannot affect the verdict and judgment in the form presented by this record. The judgment must be affirmed.

Judgment affirmed.  