#### Taylor *v.*Randall.

1. Unless exception to the charge of the court he seasonably taken error cannot be based upon it. After the delivery of a sealed verdict, or the announcement of an oral verdict, it is too late to except to the charge.

2. The proper practice requires that the exception be taken at the time the instruction is given and before the retirement of the jury to consider of their verdict.

3. This court is not at liberty to reverse a judgment upon the overruling of a motion for a new trial, where exceptions have not been properly reserved during the trial, unless the verdict is unsupported by evidence.

*Error to District Court of Parle County.*

.The case is stated in the opinion.

Mr. Oeeis Blake, for plaintiff in error.

Messrs. Fbance & Rogebs, forde fendant in error.

Thatcher, C. J.

This suit was commenced by the defendant in error against the plaintiff in error, before a justice of the peace, on an account for goods sold and delivered. The trial resulted in a judgment for the plaintiff from which an appeal was taken by the defendant to the district court, where a trial *de novo*was had with the same result as before the justice of the peace.

The first, second and third assignments of error upon the .record relate to the instructions of the court, and may be properly considered together. Unless an exception to the . charge of the court be seasonably taken, error cannot be *400predicated upon it.. The record shows that the defendant in the court below, “ at the announcement by the jury of their verdict, and upon the discharge,of the jury, ” excepted to the instructions of the court, and each and every of them. This language is somewhat ambiguous. The announcement of the verdict and the discharge of the jury could not have been simultaneous acts. One must have preceded the other. As a bill of exceptions' must be construed most strongly against the party who prepared it, we must interpret this language to import that the exception was only taken “ upon the discharge of the jury.” Can the defendant avail himself of the benefit of this exception ? Is it properly any part of the record? These are pertinent inquiries. To entitle a party to an exception to an erroneous charge, it should be taken at the time the error complained of is committed. The court, before it is too late to rectify the supposed error, must be apprised of its alleged existence. If the party aggrieved silently acquiesces in the instructions given, until the time has passed within which it is possibiefor the court to recede from its position, if it chooses to do so, he is precluded thereafter from taking an exception. If the exception be allowed, it becomes a needless incumbrance ol the record.

The authorities are agreed that after the delivery of a sealed verdict or the announcement of an oral verdict in open court, it is too late to except to the charge. *Jones et al.*v. *Insurance Co. of North*America, 1 Binn. (Penn.) *38; Bratton*v. *Mitchell, 3*Penn. St. 44; *Morris*v. *Buckly,*8 S. & R. 211; *Jones*v. *Van Patten,*3 Ind. 107; *Madenbousch*v. *Sharer, 2 W.*Va. 285; *Lanuse*v. *Barker,*10 Johns. 321; *Doyle*v. *Stevens,*4 Mich. 87; *State*v. *Clark,*37 Vt. 471; *Leigh*v. *Hodges,*3 Scam. 17; *Hill*v. *Ward, 2*Gill, 293; *Life and Fire Insurance Co.*v. *The Mechanics' Fire Ins. Co.,*7 Wend. 35.

The doctzine *of*the last four cases just cited, which we coziceive is the better pz’actice, requires the exception to be taken at the time the instructions are given, and before the retirement of the jury to consider of their verdict. But the *401exception under consideration was not taken even in pursuance of the more liberal practice. It came too late.

Had the exception been taken in time, it would afford no ground for a reversal of the judgment. The instructions could not have misled the jury in any event to the prejudice of the defendant.

The only other question raised by the remaining assignment goes to the ruling of the court in denying the motion for a new trial. As no exception was duly reserved during the progress of the trial, we are not at liberty to reverse the judgment unless the verdict .is unsupported by evidence. The *bona Jides*of the sale by Janes to Randall was sought to be impeached. The actual delivery and continued possession of the property sold were also drawn in question. As no written pleadings were required, the court below allowed the same latitude to the defendant in the introduction of testimony as if every plea that might have been pleaded had been interposed. The evidence is set out *in extenso*in the record. It was the province of the jury that tried the cause, as the evidence was so contradictory as to be impossible of reconciliation, to determine to whom credit should be given. They are the proper judges of the weight of evidence and the credibility of witnesses. Sitting as an appellate court we must assume the truth to be with the evidence that upholds, and not with that which assails the verdict, unless the weight of evidence very strongly preponderates against it. It is not enough that had the verdict been different upon the same evidence, this court would not have disturbed it. This case has twice been submitted to a jury with the same result at each trial. As in our view there is sufficient evidence to sustain the verdict, and as we discover no materia] error in the record, the. judgment of the' court below will be affirmed.

*Affirmed.*