Chief Justice Sharswood
delivered the opinion of the court, February 6th 1882.
A writ has been issued in this case in accordance with the provisions of the statute of Westminster, 13 Edw. I., c. 31 (Roberts’ Dig. 92), to Thomas K. Finletter, one of the judges of the Court of Quarter Sessions of Philadelphia county, founded upon the complaint of the plaintiffs in error, that on the trial before him various exceptions were taken and alleged to certain of his rulings, and to his charge, and that he had refused to affix his seal to those exceptions, commanding him to affix his seal thereto. To this writ Judge Finletter has filed an answer.
*419It is beyond all question that the statute of Westminster was never held to apply to proceedings in criminal courts. In Middleton v. Commonwealth, 2 Watts 285" court="Pa." date_filed="1834-05-15" href="https://app.midpage.ai/document/middleton-v-commonwealth-6311225?utm_source=webapp" opinion_id="6311225">2 Watts 285, it was decided by this court that when the judge had actually sealed the bill it would not be considered. Gibson, C. J., said: “ It is not pretended that the judges were bound to seal these bills of exceptions, but it is said that as they have voluntarily done so, we are bound to inspect the matter supposed to be thus put on the record. But the statute sanctions nothing which it does not enjoin; and as it has been held in Sir Harry Vane’s case according to the report of it in 1 Levinz 68 and Kelynge 18, to be inapplicable to any criminal matter whatever, the case before us stands precisely as it would have stood before the statute.” The same thing was decided in Schœppe v. Commonwealth, 15 P. F. Smith 51. At common law no bills of exception were permitted in criminal cases, nor did the evidence, rulings and charge of the court form any part of the record: Ibid. It is clear, then, that the right to. a bill of exceptions depends entirely upon the Acts of Assembly. The Legislature, on the 6th day of November 1856 (Pamph. L. 1857, Appendix 795), passed “An Act allowing bills of exceptions and writs of error in criminal cases.” The provisions of this Act were incorporated with the Criminal Procedure Act of March 31st 1860, Pamph. L. 440. As,1 however, they are confined to trials on any indictment for murder or voluntary manslaughter, they are inapplicable to the case now before ns. They provide that the defendant “ may except to any decision of the court upon any" point of evidence or law, which exception shall be noted by the court and filed of record as in civil cases:” § 57. And also that the court may be required to give an opinion upon any point submitted, and stated in writing, “ which point and answer shall be filed with the records of the case.” On the 19th day of May 1874, was passed the Act entitled “ An Act to provide for review in the Supreme Court in criminal cases,” Pamph. L. 219. After providing “ that on the trial of all cases of felonious homicide, and in all such other criminal cases as are exclusively triable and punishable in the courts of Oyer and Terminer and general jail delivery, exception to any decision of the court may be made by the defendant, and a bill thereof shall be sealed in the same manner as is provided and practiced in civil cases,” and “ in all other criminal cases exceptions as aforesaid may be taken.” This is all the legislation on the subject, and it is clear that a marked difference is made between eases of homicide and voluntary manslaughter and other cases. In the former, the court is bound to file of record its rulings upon points of evidence or law, and also its answers to points submitted. In all other criminal trials exceptions may be taken as in civil cases. This *420may be considered as extending the statute of Westminster to this class of proceedings. The court is not bound to file the charge in writing, or the answers to points, or the rulings on questions of evidence. In all these matters the defendant is remitted to his bills of exceptions. In strictness these ought to be presented and sealed during the trial, and such was formerly the practice in civil cases.
The courts, however, have relaxed this strictness, and all that is required now is that the exception should be taken, and noted at the time: Stewart v. Huntingdon Bank, 11 Serg. & R. 267. There is nothing in any Act of Assembly, to prevent the courts from returning to the old strictness under the statute of Westminister. But it is very plain, that this new practice required to be regulated by rules of court, and a reasonable time fixed within which the court should be called on to seal the bill. It ought to be within such time, as that the matter may be still fresh in the recollection of the court. Accordingly, the civil courts have generally adopted rules to the effect that the bill should be presented to the court within a certain period, and finally settled and sealed within a defined time thereafter.
There is no reason why criminal courts should not adopt the same rules. Indeed, it may well be doubted whether under the general and comprehensive terms of the Act of 1874 these rules in civil cases would not be applicable. However, it is unnecessary to decide that question here, as it appears by the answer of the respondent with a copy of the record, that they have been expressly adopted by the judges for the courts of Oyer and Terminer and Quarter Sessions of Philadelphia county. They ought certainly to be enforced. It is a mistake to suppose that they can be waived by the district attorney for the Commonwealth. They are intended for the protection of the judge, as well as for the Commonwealth. The idea put forth in the oral argument, that where the parties have agreed to a bill of exceptions, the court is bound to seal it, is certainly something new under the sun. The answer shows clearly that whatever the district attorney may have done, the respondent never waived his right to insist upon the enforcement of the rule. When he was first requested to fix a time for settling the bill, which was long after the time prescribed by the rule had expired, he raised the objection, but fixed a subsequent time to hear the application. At the time fixed he was in court, as also the • district attorney and two of the defendant’s counsel, but no application was made. Other times were appointed, but the bill was not presented until several weeks after, when he refused distinctly on the ground that it was not presented for settlement in time, and gave his reasons in writing, but added, “ there maybe such explanations of this delay as will satisfy *421mo that I ought not to let it prevent me from signing a proper bill.” He afterwards fixed several times, but no application was made until November 23d, nine months after the trial, when a paper was presented to be settled which had not indorsed any note signed by him to show that it had ever been presented. He very properly then refused to seal the bill. A bill of exceptions must be settled within the specified time or it will be disregarded: Kirkpatrick v. Lex, 13 Wright 122.
Nothing further need be added. There can be no traverse of the respondent’s return : Conrow v. Schloss, 5 P. F. Smith 29. If there exist any reasons why this rule should not apply in criminal cases it is for the legislature to annul it, and provide a remedy. It is very evident that we have no power to order the respondent to file liis charge, or his answers to the points, of his notes of testimony.
It is ordered that the respondent go, without day.