Exception(redirected from taking exception)
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The act of excepting or excluding from a number designated or from a description; that which is excepted or separated from others in a general rule or description; a person, thing, or case specified as distinct or not included; an act of excepting, omitting from mention, or leaving out of consideration. Express exclusion of something from operation of contract or deed. An exception operates to take something out of a thing granted that would otherwise pass or be included.
Objection to an order or ruling of a trial court. A formal objection to the action of the court, during the trial of a case, in refusing a request or overruling an objection; implying that the party excepting does not acquiesce in the decision of the court, but will seek to procure its reversal, and that he or she means to save the benefit of his or her request or objection in some future proceeding. Under rules practiced in the federal and most state courts, the need for claiming an exception to evidence or to a ruling to preserve appellate rights has been eliminated in favor of an objection.
n. 1) a formal objection during trial ("We take exception, or simply, "exception")" to the ruling of a judge on any matter, including rulings on objections to evidence, to show to a higher court that the lawyer did not agree with the ruling. In modern practice, it is not necessary "to take exception" to a judge's adverse ruling, since it is now assumed that the attorney against whom the ruling is made objects. This also keeps the transcribed record from being cluttered with shouts of "exception." 2) in contracts, statutes or deeds, a statement that some matter is not included. (See: exception in deed)
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. 208, n.
EXCEPTION, legislation, construction. Exceptions are rules which limit the extent of other more general rules, and render that just and proper, which would be, on account of its generality, unjust and improper. For example, it is a general rule that parties competent may make contracts; the rule that they shall not make any contrary to equity, or contra bonos mores, is the exception.
EXCEPTION, contracts. An exception is a clause in a deed,. by which the
lessor excepts something out of that which he granted before by the deed.
2. To make a valid exception, these things must concur: 1. The exception must be by apt words; as, saving and excepting, &c. 2. It must be of part of the thing previously described, and not of some other thing. 3. It must be part of the thing only, and not of all, the greater part, or the effect of the thing granted; an exception, therefore, in a lease, which extends to the whole thing demised, is void. 4. It must be of such thing as is severable from the demised premises, and hot of an inseparable incident. 5. It must be of a thing as he that accepts may have, and which properly belongs to him. 6. It must be of a particular thing out of a general, and not of a particular thing out of a particular thing. 7. It must be particularly described and set forth; a lease of a tract of land, except one acre, would be void, because that acre was not particularly described. Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R. 337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R. 499; 6 N. H. Rep. 421. Exceptions against common right and general rules are construed as strictly as possible. 1 Barton's Elem. Conv. 68.
3. An exception differs from a reservation; the former is always a part of the thing granted; the latter is of a thing not in esse but newly created or reserved. An exception differs also from an explanation, which by the use of a videlicet, proviso, &c., is allowed only to explain doubtful clauses precedent, or to separate and distribute generals, into particulars. 3 Pick. R. 272.
EXCEPTION, practice, pleading. This term is used in the civil, nearly in the
same sense that the word plea has in the common law. Merl. Repert. h.t.;
Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in writing, that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. 228.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress. Poth. Proc. civ. partie 1, c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332. Declinatory exceptions have this effect, as well as the exception of discussion opposed by a third possessor, or by a surety in an hypothecary action, or the exception taken in order to call in the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These exceptions must, in general, be pleaded in limine litis before issue joined. Civ. Code of Lo. 2260; 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory exception is a species of dilatory exception, which merely declines the jurisdiction of the judge before whom the action is brought. Code of Pr. of L. 334.
4. Peremptory exceptions are those which tend to the dismissal of the action. Some relate to forms, others arise from the law. Those which relate to forms, tend to have the cause dismissed, owing to some nullities in the proceedings. These must be pleaded in limine litis. Peremptory exceptions founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to definitive judgment. Id. art. 343, 346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3. These, in the French law, are called Fins de. non recevoir. (q.v.)
5. By exception is also meant the objection which is made to the decision of a judge in the course of a trial. See Bill of Exception.