There is no doubt but the first error must be stricken out. The record shows that the party objected, but not that there was any bill of exceptions signed or presented. The other objection has been several times incidentally before the Supreme Court, and also before this court; and although various opinions have been expressed, some of which are reported and others not, the point now raised has never been directly decided.

The old practice was, when a party was dissatisfied with the charge of the judge, simply to take a general exception without specification, and thus have the whole charge spread upon the record. This led to many inconveniences and much injustice, both to the court and the parties; and some years since the practice was changed, and now the judge usually requires the party objecting to specify his objections, and if he neglects to do it, the adverse party may require it; but if neither judge or party require specification, and a general bill of exception is tendered and signedt to the whole charge, and thus it becomes in extenso a part of the record, I know of no rule of law or propriety which forbids the party to assign his errors upon any part of the charge or record. If the party *711objecting is not required to specify at the trial, he may do so in assigning errors, and set forth any error which may appear upon the record, and this court has no right to deprive him of that benefit; but if he assign for error what does not appear upon the record, or is not covered by some bill of exception, the assignment may be stricken out of course, or the same be excluded from consideration in the argument or the decision of the court. The right of the party to take exceptions to any part of the charge covered by a general bill of exception allowed and sealed as to the whole, and the weight to be given to such exception, are very different things. The charge must be taken as a whole, and the point objected to considered in that light; or if it appear that the objection was of such a character that the specification of it below would have cured the evil, then, of course, it can be of very little force in an appellate court. But if the party is suffered to take a general exception to the whole charge without objection by court or counsel below, and a bill is actually signed embracing the whole charge, it would be doing great injustice to the exceptant if he were prohibited from making a fair assignment of errors on that charge.

moved for the production of the original bills of exceptions, if any there were, that it might be seen by the court whether the judge of Bergen county Circuit Court had in point of fact signed a bill of exceptions to the charge generally.

objected to this motion as too late; that the defendant, having permitted the printed case, in which the bill of exceptions was printed, with the signature and seal of the circuit judge, to be read without objection, and the argument to be commenced, it was now too late to inquire for the bill of exceptions, and that they could not be called upon to produce any.

Zabrhkie, in reply. The bill of exceptions is part of the re*712cord and an original paper, upon which all the assignment of errors depends. The printed ease is only a copy for the convenience of the court. It now turns out that there never was any bill of exceptions signed. It is not laches in counsel to suppose that when a bill of exceptions is printed in a state of the case, with the signature and seal of the circuit judge, that there is in fact a bill signed. The almost universal practice, in this state, of keeping the bill from the files among the private papers of the plaintiff’s attorney would prevent the fact being discovered ; and it is not reasonable, when, iu the course of a cause, improper exceptions are sustained on the ground that the Circuit Court allowed them, to inquire if in fact that court did allow them. The court may hear the argument from the printed bill j but how can they give a judgment founded on this supposed bill of exceptions, when it has no existence on their files or elsewhere.

*711The first assignment of error was stricken out, and the motion refused, as to the errors assigned on the charge, by the unanimous opinion of the court.

*712The court, on conference, held that in this stage of the cause the defendant in error had no right to call for any bill of exceptions.

1st point. The verdict in the former suit was not conclusive, unless pleaded. All estoppels must be pleaded, or else only evidence that the jury may is satisfied disregarded. 2 Paine 493.

2d point. The Circuit Court erred in its construction of the reservation of the deed as to the distillery. The distillery itself was only reserved, which is the building, not any land or easement over any land ; at all events plaintiff was confined to the use of his leaders in the same position, and no other.

3. The direction of the court, as to the verdict, was erroneous and contrary to law. Arch. Pr. 195-6

1st point. The rule, as to pleading an estoppel, is clear and well settled. It must be pleaded if a party has an opportunity to plead it, else it is not conclusive. But a deed or judgment offered in evidence, which a party has had no opportunity to plead, will be an estoppel, and conclusive when given in evi*713dence. 1 Salk. 276, Trevivian v. Lawrence; 2 Sim. L. Cas. 430, (S. C.) and authorities in notes; 3 Cowen’s Phil. Ev. 804. — 810, and 975; 8 Wend. 1 and 35, Wood v. Jackson; 2 Hill’s (N. Y.) R. 478.

2d point. The reservation of the distillery reserves the lands on which it stands, and reserving the privileges creates an easement over the part granted. The charge of the court was, that the plaintiff must use his privileges not in precisely the same manner, but so as not to be more onerous to the defendant than they were formerly used.

3d point. As to the verdict, the separate finding on each issue is lawful, and in the case of two distinct causes of action, as here, in one declaration, peculiarly proper. 1 Chit. Pl. 411; 3 Johns. R. 189; 3 Chit. Gen. Pr. 921 ; l Arch. Pr. 195.

The court, all the judges except the Chief Justice and Justice Carpenter being present, unanimously affirmed the judgment below. No written opinion being delivered by any of the judges.

Cited in Lutes v. Alpaugh, 3 Zab. 166; Donnelly v. State, 2 Dutch. 606; Hinchman v. Rutan, 2 Vr. 502; Hopper ads. Chamberlain, 5 Vr. 225.