Butcher v. Keil

M’Girk, C. J., delivered the opinion of the Court. This was an action of crim. con. brought by Butcher against two defendants. To the declaration, there was a general demurrer, and the demurrer Was, by the Court, sustained, and judgment for defendants. It appears, by the transcript, that the plaintiff then moved to strike out one defendant, which was refused; and then he moved for leave to enter a nol. pros, as to one defendant, which was also refused. The matter of these two motions, is not, in law, a part of the record. The plaintiff, in order to have the benefit of them, on error, should have made his motions a part of tlie record, by a bill of exceptions, which has not been done. It is not eveiy thing which the Clerk chooses to write in the record book, that is a part of the record. Where the Court gives an opinion on a point not presented by an issue of law, it must be saved by exception, and that exception made a part of the record, by a bill. As to the demurrer, the Court did right in sustaining it. The judgment of the Court below is affirmed with costs.