Definition
An exception on trial is a formal objection made by a party's counsel during the course of a trial to a ruling, decision, opinion, or direction issued by the presiding judge. The exception preserves the party's legal complaint about that ruling for appellate review, typically serving as the foundation for a subsequent motion for a new trial or the prosecution of a writ of error.
The mechanism works in two principal contexts: (1) objection to a judge's evidentiary or procedural ruling made during the course of trial proceedings, and (2) objection to a legal opinion expressed or instruction given by the judge in charging the jury. In both cases, the exception functions as a formal marker — a contemporaneous signal that the party disputes the judge's action and intends to rely on that dispute as grounds for relief.
Common Confusion
EXCEPTION ON TRIAL vs. BILL OF EXCEPTIONS: These are related but not interchangeable. The exception is the act — the formal objection made at trial in real time. The bill of exceptions is the written document prepared after trial that records what the exception was and the facts surrounding it, authenticated by the trial judge's signature, and transmitted as part of the appellate record. A party could take a proper exception and still lose appellate review if the bill of exceptions was defective, untimely, or unsigned.
EXCEPTION ON TRIAL vs. MODERN OBJECTION: The modern trial objection preserves error under contemporary procedural codes (such as the Federal Rules of Civil and Criminal Procedure), but the formalism surrounding historical exceptions was considerably more rigid. The terminology should not be mapped interchangeably onto modern practice.
Why It Matters in Research
This term belongs almost entirely to the pre-modern procedural world. Researchers working in historical American and English legal materials — roughly pre-twentieth century — will encounter "exception on trial" as a routine procedural device with technical significance that is easy to misread through a modern lens.
The critical trap: modern researchers may confuse the historical exception on trial with a modern trial objection. They are functionally related but procedurally distinct. In the historical common law system, a party who failed to take a formal exception at the time of a ruling forfeited appellate review of that ruling entirely. The exception was not merely a signal of disagreement — it was the jurisdictional predicate for error review. Without a properly taken and noted exception, no appellate court could reach the merits of the underlying ruling. This is more stringent than the modern contemporaneous objection rule, which serves a similar preservational function but operates under different procedural frameworks depending on jurisdiction.
Researchers working in writ-of-error jurisprudence will find exception on trial appearing constantly as the procedural gateway. Cases dismissed for want of a bill of exceptions, or where the appellate record was contested on grounds that no proper exception was taken, turn entirely on this concept. Understanding what constituted a valid exception — when it had to be taken, how it had to be noted, whether the bill of exceptions had to be signed by the judge — is essential to reading these records accurately.
The relationship to bills of exceptions is equally important. An exception on trial was typically memorialized in a bill of exceptions — a formal written statement of the facts and the ruling excepted to, signed by the trial judge and made part of the appellate record. The exception and the bill are distinct things; the exception is the act taken at trial, the bill is its documentary embodiment for purposes of appellate review. Confusing the two causes errors in reading both trial records and appellate decisions of the period.
Jurisdictional variation in this era was significant. American states adopted varying procedural rules governing the form, timing, and sufficiency of exceptions. Federal equity practice differed from common law practice. Researchers moving between jurisdictions or between law and equity courts in historical sources must check the applicable procedural rules for each.
Historical Dictionary Support
Bouvier and Burrill are in close agreement on the core definition, with nearly identical language: the exception is taken by counsel of a party, directed at a decision by the judge during trial or an opinion or direction in the charge to the jury, and its purpose is either a motion for a new trial or a writ of error. This formulation is tightly procedural and reflects the exception's role as a formal appellate preservation mechanism rather than a substantive legal concept.
Rapalje & Lawrence's entry under this heading is not useful for this term — the entry text visible in the source material addresses the law of exchange of lands rather than trial exceptions, suggesting either a cross-reference artifact or a misalignment in the source. Researchers should not rely on Rapalje & Lawrence for this specific entry and should consult Bouvier and Burrill directly.
What the historical dictionaries omit: they do not address the bill of exceptions procedure, the judge's obligation to sign, or the consequences of a defective bill. They also do not distinguish between exceptions to evidentiary rulings and exceptions to jury charges, though the procedural stakes could differ. Treatises on pleading and practice — not dictionaries — are the right sources for those details.
Encyclopedia Cross-Reference
Bench Trials (The Law Mind Criminal Law Encyclopedia) — relevant for understanding the judge's role in issuing the rulings and charges that exceptions on trial were directed against.