REYBTJRN, J.
(after stating the facts as above).— 1. This action was tried before a jury, which, after deliberating upon the verdict, addressed a communication to the trial judge requesting him to give the amount to he inserted to fill out the verdict; that the instructions did not contain it. The court made known to the attorneys of the respective parties the contents of the foreman’s note, and stated he would instruct the jury as to the measure of damages, and let each side state to the jury what they had to say on that point. Defendant’s ■counsel objected to such proceedings and to the giving of any further instructions in the case, and left the courtroom without then saving any exception; the court of its own motion wrote out and sent by the sheriff to the jury room the following:
“The court instructs the jury that if they find in favor of plaintiff, they will assess the damages at the reasonable value of the merchandise turned over by said Williams to defendant, not exceeding the sum of $850, and that the plaintiff claims the sum of $571.24 as such reasonable value. ’ ’
Whereupon the jury returned a majority verdict in. favor of plaintiff, assessing his damages at the sum of $571.24. On the day following, defendant, through its [668]*668attorney, presented, had signed by the trial judge, and filed a special bill of exceptions, which later, at a succeeding term,of court, after the motion for new trial had been overruled, was embodied in the general bill of exceptions, bearing date June 23, 1903, which in other respects was in the usual form.
The statute provides that all exceptions taken during the trial of a cause before the same jury shall be embraced in the same bill of exceptions. R. S. 1899, sec. 728. In an early case, it was held that the law now allowed but one bill of exceptions, and the matters excepted to during the trial are to be noted at the time, and after the trial is over and the motion for a new trial, or other appropriate motion has been overruled, a bill of exceptions is to be prepared, stating the matters excepted to in the order in which they occurred during the trial. Dougherty v. Whitehead, 31 Mo. 255. This court, in a recent decision construing the aboye section, has held that it was a mandatory provision, and contemplated that the final bill of exceptions should be embraced in one document. Atchison v. Railroad, 94 Mo. App. 572. The last cited case was intended, however, by this court to be- confined to bills of exception taken after the appeal had been allowed, and was not meant to dispense with term bills of exception. The approved practice, if the action of the trial court is desired to be .reviewed by the appellate court, is to preserve the exception by proper bill at the term at which the ruling the subject of exception, was had, and incorporate such term bills in the final bill of exceptions, ultimately taken as a step for appeal of the cause, which was the course adopted in this proceeding, and which has received the sanction of the Supreme Court. Smith v. Baer, 166 Mo. 392.
2. The section of the statutes (R. S. 1899, sec. 748) relating to the stage of the trial at which the instructions shall be given, and the right of a trial court to instruct a jury'at a period other than immediately after the evi[669]*669dence is concluded, will be found, elaborately discussed by tbe Supreme Court in Yore v. Transfer Co., 147 Mo. 678, where the practice was approved, permitting tbe giving of an instruction at any time, during tbe consideration of tbe case by tbe jury, provided'tbe instruction announced a correct proposition of law, applicable to tbe facts of tbe case, given in open court and affording tbe opposing parties an opportunity to know its contents and note exceptions thereto, if desired, or to ask further explanatory instructions, if deemed necessary. Tbe instruction herein was given under tbe conditions held requisite by the' above decision, and we are restricted to weighing its contents. Waiving tbe doubt whether tbe defendant is entitled to have the question considered, as it is very questionable whether tbe exception was properly saved, we are unable to escape tbe conviction that tbe concluding clause advising tbe jury of tbe amount claimed by plaintiff, as tbe reasonable value of the. .merchandise asserted to constitute tbe preference, is amenable to tbe two-fold charge'that it is a comment upon the evidence, and tends to make too conspieuóus a feature of tbe case which was an important issue under- submission to and properly to be determined by tbe jury. Its ma - teriality and prejudicial tendency is attested by the prompt return thereafter, by tbe jury of a verdict in' tbe amount named in tbe instruction.
3. Tbe proof offered to establish the allegations made in tbe petition of tbe bankruptcy proceedings, and tbe election and qualification of plaintiff, as trustee of tbe estate of Williams, consisted of tbe following, both entitled as of tbe District-Court of tbe'United States lor, -the Eastern Division of tbe Southern District of Georgia, and in the- matter- of tbe bankrupt:
“At Brunswick, in said district, on tbe twenty-fourth day of June, A. D. 1902, before me, A.- J. Crovatt, referee of said court in bankruptcy, tbe petition of H. U. Williams that be be adjudged a bankrupt within-tbe true intent and meaning of tbe acts' of Congress relating, to [670]*670bankruptcy, having been heard and duly considered, the said H. U. Williams is. hereby declared and . adjudged bankrupt accordingly.
“A. J. Crovatt,
‘ ‘ Referee in B ankruptcy. ’ ’
“I, A.'J. Crovatt, one of the referees in bankruptcy of said court, do hereby certify that the foregoing is a true and accurate copy of the original order of adjudication in the case of H. U. Williams, bankrupt, original of file in my office.
“Dated at Brunswick, Georgia, March 23,1903.
“A. J. Crovatt,
“Referee in Bankruptcy.’’
Also a copy of the bond of .plaintiff as such trustee and its approval by the referee in bankruptcy, and a certificate of authentication of both by the same referee. These documents were admitted in evidence without objection thereto by defendant, and respondent now insists that the latter must be held to have waived the contention now sought to be pressed, that there was no proof that Williams was legally adjudicated a bankrupt in the absence of evidence in the record that the judge was absent from the district, or the division of the district in which the petition was pending. The bankrupt act provides that, “if the judge is absent from the district, or the division of the "district in. which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the cáse to the referee. ’ ’ The preceding subdivision declares, “If, on the last day within which pleadings may be filed, none, are filed by the bankrupt or any of his. creditors, the judge shall, on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.” Chap. 4, sec. 18, e and f. . It is manifest from this language of these sub-. [671]
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REYBTJRN, J.
(after stating the facts as above).— 1. This action was tried before a jury, which, after deliberating upon the verdict, addressed a communication to the trial judge requesting him to give the amount to he inserted to fill out the verdict; that the instructions did not contain it. The court made known to the attorneys of the respective parties the contents of the foreman’s note, and stated he would instruct the jury as to the measure of damages, and let each side state to the jury what they had to say on that point. Defendant’s ■counsel objected to such proceedings and to the giving of any further instructions in the case, and left the courtroom without then saving any exception; the court of its own motion wrote out and sent by the sheriff to the jury room the following:
“The court instructs the jury that if they find in favor of plaintiff, they will assess the damages at the reasonable value of the merchandise turned over by said Williams to defendant, not exceeding the sum of $850, and that the plaintiff claims the sum of $571.24 as such reasonable value. ’ ’
Whereupon the jury returned a majority verdict in. favor of plaintiff, assessing his damages at the sum of $571.24. On the day following, defendant, through its [668]*668attorney, presented, had signed by the trial judge, and filed a special bill of exceptions, which later, at a succeeding term,of court, after the motion for new trial had been overruled, was embodied in the general bill of exceptions, bearing date June 23, 1903, which in other respects was in the usual form.
The statute provides that all exceptions taken during the trial of a cause before the same jury shall be embraced in the same bill of exceptions. R. S. 1899, sec. 728. In an early case, it was held that the law now allowed but one bill of exceptions, and the matters excepted to during the trial are to be noted at the time, and after the trial is over and the motion for a new trial, or other appropriate motion has been overruled, a bill of exceptions is to be prepared, stating the matters excepted to in the order in which they occurred during the trial. Dougherty v. Whitehead, 31 Mo. 255. This court, in a recent decision construing the aboye section, has held that it was a mandatory provision, and contemplated that the final bill of exceptions should be embraced in one document. Atchison v. Railroad, 94 Mo. App. 572. The last cited case was intended, however, by this court to be- confined to bills of exception taken after the appeal had been allowed, and was not meant to dispense with term bills of exception. The approved practice, if the action of the trial court is desired to be .reviewed by the appellate court, is to preserve the exception by proper bill at the term at which the ruling the subject of exception, was had, and incorporate such term bills in the final bill of exceptions, ultimately taken as a step for appeal of the cause, which was the course adopted in this proceeding, and which has received the sanction of the Supreme Court. Smith v. Baer, 166 Mo. 392.
2. The section of the statutes (R. S. 1899, sec. 748) relating to the stage of the trial at which the instructions shall be given, and the right of a trial court to instruct a jury'at a period other than immediately after the evi[669]*669dence is concluded, will be found, elaborately discussed by tbe Supreme Court in Yore v. Transfer Co., 147 Mo. 678, where the practice was approved, permitting tbe giving of an instruction at any time, during tbe consideration of tbe case by tbe jury, provided'tbe instruction announced a correct proposition of law, applicable to tbe facts of tbe case, given in open court and affording tbe opposing parties an opportunity to know its contents and note exceptions thereto, if desired, or to ask further explanatory instructions, if deemed necessary. Tbe instruction herein was given under tbe conditions held requisite by the' above decision, and we are restricted to weighing its contents. Waiving tbe doubt whether tbe defendant is entitled to have the question considered, as it is very questionable whether tbe exception was properly saved, we are unable to escape tbe conviction that tbe concluding clause advising tbe jury of tbe amount claimed by plaintiff, as tbe reasonable value of the. .merchandise asserted to constitute tbe preference, is amenable to tbe two-fold charge'that it is a comment upon the evidence, and tends to make too conspieuóus a feature of tbe case which was an important issue under- submission to and properly to be determined by tbe jury. Its ma - teriality and prejudicial tendency is attested by the prompt return thereafter, by tbe jury of a verdict in' tbe amount named in tbe instruction.
3. Tbe proof offered to establish the allegations made in tbe petition of tbe bankruptcy proceedings, and tbe election and qualification of plaintiff, as trustee of tbe estate of Williams, consisted of tbe following, both entitled as of tbe District-Court of tbe'United States lor, -the Eastern Division of tbe Southern District of Georgia, and in the- matter- of tbe bankrupt:
“At Brunswick, in said district, on tbe twenty-fourth day of June, A. D. 1902, before me, A.- J. Crovatt, referee of said court in bankruptcy, tbe petition of H. U. Williams that be be adjudged a bankrupt within-tbe true intent and meaning of tbe acts' of Congress relating, to [670]*670bankruptcy, having been heard and duly considered, the said H. U. Williams is. hereby declared and . adjudged bankrupt accordingly.
“A. J. Crovatt,
‘ ‘ Referee in B ankruptcy. ’ ’
“I, A.'J. Crovatt, one of the referees in bankruptcy of said court, do hereby certify that the foregoing is a true and accurate copy of the original order of adjudication in the case of H. U. Williams, bankrupt, original of file in my office.
“Dated at Brunswick, Georgia, March 23,1903.
“A. J. Crovatt,
“Referee in Bankruptcy.’’
Also a copy of the bond of .plaintiff as such trustee and its approval by the referee in bankruptcy, and a certificate of authentication of both by the same referee. These documents were admitted in evidence without objection thereto by defendant, and respondent now insists that the latter must be held to have waived the contention now sought to be pressed, that there was no proof that Williams was legally adjudicated a bankrupt in the absence of evidence in the record that the judge was absent from the district, or the division of the district in which the petition was pending. The bankrupt act provides that, “if the judge is absent from the district, or the division of the "district in. which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the cáse to the referee. ’ ’ The preceding subdivision declares, “If, on the last day within which pleadings may be filed, none, are filed by the bankrupt or any of his. creditors, the judge shall, on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.” Chap. 4, sec. 18, e and f. . It is manifest from this language of these sub-. [671]*671divisions of this chapter of the bankrupt act that primarily the adjudication in bankruptcy is committed to and must be made by the judge of the court in which the proceeding is pending, and only in the absence of such judge from the district, or the division of the district, is authority conferred upon the clerk to refer the case to the referee to whom, as the arm of the court, jurisdiction attaches to consider the petition in such case, make adjudication, or dismiss the petition. Chap.- 5, sec. 35. The absence of the federal judge from the district, or from the division of the district, is a condition precedent to the lodging of authority in the referee; such absence of the judge is a jurisdictional fact, which transfers the right and power of such absent judge to the referee, upon action referring the case to him by the clerk, to make the adjudication or dismiss the petition, and as a fact essential to create or confer jurisdiction, affirmative evidence of its existence must appear, and no presumption respecting it can be indulged in. It is true that the act further provides that certified copies of proceedings before a referee shall be admitted in evidence, with like force and effect, as certified copies of the records of district courts of the United States, and that a certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt: (Sec. 21, d and e) but impliedly, upon the assumption that the bankruptcy be duly adjudged in conformity to the terms of the act. In the forms promulgated by the' Supreme Court of the United States, November 28,1898, pursuant to section 30, a form for reference by the clerk to the referee, in the judge’s absence is adopted (form No. 15), which recites the absence of the judge of the district. Nor is appellant precluded from presenting and urging this objection, although it made no objection to the fragments of evidence in the record, for the introduction of this imperfect proof-is not now objected [672]*672to, but its insufficiency and failure to sustain the averments of the petition are pressed.
4. In its charge to the jury, the trial court included the following instruction:
“If the jury find in favor of plaintiff they will render a verdict for such sum as will equal the value of the property, money or both, given by Williams to Pinckard in partial settlement of his debt to defendant. ’ ’
The petition alleged the transfer of merchandise of the value stated, as a preference unlawful under the acts of Congress, and prayed judgment for its value. The instruction was broader than the pleading upon which it was based, and therefore fatally erroneous. Wolfe v. Supreme Lodge, 160 Mo. 675; Friedman v. Pulitzer, etc., Co., 102 Mo. App. 683.
In view of the conclusions reached and above expressed, it is not deemed essential to indulge in considering other propositions presented by appellant, which, even if worthy of determination, are not likely to be repeated upon a retrial. For errors above noted, the judgment is reversed and the cause remanded.
Bland, P. J., and Goode, J., concur.