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Bouvier's Law Dictionary, Revised 6th Edition (1856)

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.

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