RANDALL, C. J.,
delivered the opinion of the Court.
The first point made by the appellee is that there is no bill of exceptions in the record, and that therefore the court cannot look into any of the matters assigned for error; that every fair intendment is to be made in support of the judgment below, and in the absence of a bill of exceptions showing upon what ground the court decided, it will be presumed that it decided correctly.
If it is true that there is not a bill oí exceptions, the ground taken by the appellee is correct according to the uniform decisions of common law courts. The present court and the [493] former Supreme Court of this State have repeatedly so held ; and that unless the testimony in the case was brought before it by a bill of exceptions, it could not regard it.
“ At common law a writ of error lay for an error in law, apparent in the record, or for an error of fact where either' party died before judgment; yet it lay not for an error in law not appearing in the record, and therefore when a party alleged anything, ore terms, which was overruled by the judge, this could not be assigned for error not appearing within the record, nor being an error in fact but in law, and so the party grieved was without remedy.” 2 Inst., 426. To provide a remedy the statute of Westminister 2d was enacted, which provided that exceptions should be allowed under the seal of one of the Justices. It is claimed here that there is no bill of exceptions under the seal' oí' the circuit judge. The first statute of Florida on the subject was enacted in November, 1828, (Th. Dig., 351, sec. 3,) and it requires only the signing of the bill of exceptions by the judge, or if he refuse, then the signing by three bystanders. The act of Nov., 1829; one year . afterwards, enacting the common and statute laws of England, provided that “ said statutes and common law” be adopted except so far as they were not consistent “ with the constitution and laws of the Hnited States and the acts of the General Assembly of this State.” It seems clear that this act did not change or affect our pre-existing statutes, and as a consequence if a seal was not necessary before under the statute, it was not made necessary by the enactment of the English law.
The act of 1852 relating to appeals and writs of error, provided that the “ exceptions shall be tendered to the judge for his signature, in the same manner, and under the same regulations and provisions as bills of exceptions are now made up, signed and made part of the record.”
The act of 1848, relating to writs of error in ei’iminal cases, expressly requires the circuit judge to “ sign and seal upon request any bill of exceptions taken” during the trial; but [494] the statutes relating to civil proceedings nowhere require the sealing of the bill.
The Supreme Court of this State has often passed upon the sufficiency of bills of exceptions, but has never expressly ruled upon this point. It has several times quoted the statute of Westminster with reference to the office and effect of a biU of exceptions, but without considering the point here made.
The Court in Bailey vs. Clark, 6 Fla., 522, speaks of a bill of exceptions being “ made up with care by the judge under the solemn sanction of his signature and seal,” referring to the common law practice; but the court says on the next page: “ our statute provides the mcmner of procuring a bill of exceptions, but leaves its effect to the statute of Westminster, which is one of the acts mentioned in our statute adopting the common and statute laws of England, with certain exceptions.”
Mr. Justice Thompson, in a book which unfortunately has not yet been printed, says very decidedly in a note, that the statutes of Florida have dispensed with the necessity of sealing a bill of exceptions. The very common omission of the seal in preparing and perfecting bills of exceptions by the circuit judges aiid by the bar of this State, as appears by inspecting numerous records here, shows that a seal has not been considered indispensable.
So far as this question is concerned, we are of the opinion that the law is precisely what it would have been if the statute of 1829 had not been passed, and that in civil causes a bill of exceptions may be perfected without being sealed by the judge.
We therefore proceed to examine such questions as have been presented by exceptions which appear in the record signed by the judge.' But we must say that we cannot regard the paper given above as a “ bill of exceptions.” It is merely an assignment of errors. It does not show that any exceptions were taken during the progress of the trial to the [495] rnlings of the court in excluding witnesses or refusing to hear evidence offered, nor at what stage of the trial the .several alleged rulings were made as to the exclusion of witnesses, the relevancy of testimony offered, or its quality.
But according to the view we have taken as to ydiat is sufficient to bring before this court the rulings in the court below, wo shall consider the first, second and third errors assigned :
I. The fifth plea, to which a demurrer was sustained, alleges that the defendant was deprived of the beneficial use of the demised premises by the casualties and violence of war.
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RANDALL, C. J.,
delivered the opinion of the Court.
The first point made by the appellee is that there is no bill of exceptions in the record, and that therefore the court cannot look into any of the matters assigned for error; that every fair intendment is to be made in support of the judgment below, and in the absence of a bill of exceptions showing upon what ground the court decided, it will be presumed that it decided correctly.
If it is true that there is not a bill oí exceptions, the ground taken by the appellee is correct according to the uniform decisions of common law courts. The present court and the [493] former Supreme Court of this State have repeatedly so held ; and that unless the testimony in the case was brought before it by a bill of exceptions, it could not regard it.
“ At common law a writ of error lay for an error in law, apparent in the record, or for an error of fact where either' party died before judgment; yet it lay not for an error in law not appearing in the record, and therefore when a party alleged anything, ore terms, which was overruled by the judge, this could not be assigned for error not appearing within the record, nor being an error in fact but in law, and so the party grieved was without remedy.” 2 Inst., 426. To provide a remedy the statute of Westminister 2d was enacted, which provided that exceptions should be allowed under the seal of one of the Justices. It is claimed here that there is no bill of exceptions under the seal' oí' the circuit judge. The first statute of Florida on the subject was enacted in November, 1828, (Th. Dig., 351, sec. 3,) and it requires only the signing of the bill of exceptions by the judge, or if he refuse, then the signing by three bystanders. The act of Nov., 1829; one year . afterwards, enacting the common and statute laws of England, provided that “ said statutes and common law” be adopted except so far as they were not consistent “ with the constitution and laws of the Hnited States and the acts of the General Assembly of this State.” It seems clear that this act did not change or affect our pre-existing statutes, and as a consequence if a seal was not necessary before under the statute, it was not made necessary by the enactment of the English law.
The act of 1852 relating to appeals and writs of error, provided that the “ exceptions shall be tendered to the judge for his signature, in the same manner, and under the same regulations and provisions as bills of exceptions are now made up, signed and made part of the record.”
The act of 1848, relating to writs of error in ei’iminal cases, expressly requires the circuit judge to “ sign and seal upon request any bill of exceptions taken” during the trial; but [494] the statutes relating to civil proceedings nowhere require the sealing of the bill.
The Supreme Court of this State has often passed upon the sufficiency of bills of exceptions, but has never expressly ruled upon this point. It has several times quoted the statute of Westminster with reference to the office and effect of a biU of exceptions, but without considering the point here made.
The Court in Bailey vs. Clark, 6 Fla., 522, speaks of a bill of exceptions being “ made up with care by the judge under the solemn sanction of his signature and seal,” referring to the common law practice; but the court says on the next page: “ our statute provides the mcmner of procuring a bill of exceptions, but leaves its effect to the statute of Westminster, which is one of the acts mentioned in our statute adopting the common and statute laws of England, with certain exceptions.”
Mr. Justice Thompson, in a book which unfortunately has not yet been printed, says very decidedly in a note, that the statutes of Florida have dispensed with the necessity of sealing a bill of exceptions. The very common omission of the seal in preparing and perfecting bills of exceptions by the circuit judges aiid by the bar of this State, as appears by inspecting numerous records here, shows that a seal has not been considered indispensable.
So far as this question is concerned, we are of the opinion that the law is precisely what it would have been if the statute of 1829 had not been passed, and that in civil causes a bill of exceptions may be perfected without being sealed by the judge.
We therefore proceed to examine such questions as have been presented by exceptions which appear in the record signed by the judge.' But we must say that we cannot regard the paper given above as a “ bill of exceptions.” It is merely an assignment of errors. It does not show that any exceptions were taken during the progress of the trial to the [495] rnlings of the court in excluding witnesses or refusing to hear evidence offered, nor at what stage of the trial the .several alleged rulings were made as to the exclusion of witnesses, the relevancy of testimony offered, or its quality.
But according to the view we have taken as to ydiat is sufficient to bring before this court the rulings in the court below, wo shall consider the first, second and third errors assigned :
I. The fifth plea, to which a demurrer was sustained, alleges that the defendant was deprived of the beneficial use of the demised premises by the casualties and violence of war.
It will be only necessary to refer to authorities in determining the validity of this plea. Chancellor Kent (Com. 3, 495,) has examined and collated cases involving the question as to how far a tenant is excused from performing his covenants for the payment of rent, when he is deprived even by inevitable necessity or misfortune, and without any default on his pa|^ or on the part of the landlord, of the enjoyment of the premises. “ In Paradyne vs. Jayne, (Alleyn’s Kep., 26,) an action of debt was brought for rent upon a lease for years, and the defendant pleaded by way of excuse for the non-payment of rent, that he had been driven from the premises by public enemies, viz : by Prince Kupert and his soldiers. The case was fully and ably argued before the King’s Bench during the time of the civil wars in the reign of Charles I. It was insisted that by the law of reason, a man ought not to pay rent when he could not enjoy, without any default on his part, the land demised to him, and that the civil and canon law exempted the party in such a case. But Eolle (author of the Abridgment,) overruled the plea and held that neither the hostile army nor an inundation would exempt the tenant from paying rent. The same doctrine has been held to this day, and it is well settled, that upon an express contract to pay rent, the loss of the premises by fire or inundation, or external violence, will not ex[496] empt the party from his obligation to pay rent. The case of Hallet vs. Wylie was decided on that principle ; 3 Johns. 44; 3 Burr, 1638, and it is settled that a court of equity will not grant relief. 3 Anst., 687; 18 Ves. 116, where the eourt'of equity refused to interfere in favor of the tenant who was considered- as having no equity against the effect of his express covenant to pay the rent. * * It is to be observed that (he case only applies to express agreements to pay, and if a party will voluntarily create a duty or charge upon himself, he ought to abide by it when the other party is not in fault, and when he might have provided, if he had chosen, against his responsibility in case of such accidents. The loss of the rent must fall either on the lessor or lessee, and there is no more equity that the landlord should bear it than the tenant, when the tenant has engaged expressly to pay the rent. * * Inevitable accident will excuse a party from a penalty, but will not relieve him from his covenant to perform.” The case of Fowler vs. Bolt, 6 Mass, 63, is strongly in point; see also Gates vs. Green, 4 Paige, 355.
1 Hilliard’s Abridgment, 463, sec. 7, cited by appellant, does not sustain his position. It merely says: “ There are some cases where, although there is no actual eviction, yet the law will attach the same consequences to the acts done’ viz : a discharge of the rent, the tenant having lost the use of the land.” Holland vs. Shaffer, 1 Dallas, 210, also cited by him, holds the lessee to the performance of his covenant to pay rent; but excused, upon equitable principles, the agreement to deliver up in good repair. The case of Bayley vs. Lawrence, 1 Bay, 499, (So. Ca.,) seems to sustain the defence. That was covenant upon a lease of a ship yard at Hilton Head in 1774. The defence was that the lessee was driven off by the casualties of war, and deprived of the enjoyment. The whole of the opinion is in these words : “ The defendant ought to pay for the time he peaceably enjoyed the premises, but not for any time he was prevented by the casualties of war.” This was a fugitive case picked up by [497] the reporter and inserted some years after it was decided, and does not appear to have been decided by an appellate court. Hilliard on Real Property, sections 17, 18, says, “ If the tenant has expressly covenanted or agreed to pay rent, he still remains liable to an action of covenant or an action of debt. Thus, if an army enter upon the land and expel him, he is still bound to pay rent.”
It is .believed that in all elementary books touching the question, this is laid down as the settled doctrine. The conclusion, therefore, is, that the demurrer to the fifth plea was properly sustained.
As to the sixth plea, it simply avers that defendant has 'offered to perform his covenant in part if he may be excused from the residue. This is not a legal or equitable defence within the meaning of the statute.
II. The second error alleged is, that the court sustained the demurrer to the defendant’s plea putin as an amendment to his several pleas, and filed Sept. 14th, 1867.
As has been already stated, Judge Putnam sustained the demurrer and gave defendant leave to amend, and defendant, on the 11th of October, filed an amended plea.
In Ellison vs. Allen, 8 Fla., 206, the court considered that a demurrer was improperly overruled, but says, “ Still the defendant cannot, under the after proceedings had in this cause, be permitted to avail himself of this exception, for it is well settled that if a party, after judgment upon demurrer is given against him, goes on to amend his pleadings and makes an issue to the country, he thereby waives his exception to the judgment upon the demurrer*, and will not be permitted to assign it for error in the appellate court. If the defendant had desired to have. that ruling reversed by this court, he should have refused to go to the country, and have permitted the judgment on the demurrer to stand. Going to issue on the pleading operated as a waiver of the exception.” 5 How., U. S., 29 ; Morrison vs. Morrison, 3 Stewart, 444. Indeed it is uniformly held that if a party [498] whose pleading has been overruled pleads over, he thereby abandons the first pleading.
III. The third ground of .error is that the court sustained the demurrer ore terms to the pleas filed December 7, 1888, to-wit: a set-off of damages sustained by defendant growing out of a conspiracy against him entered into by the intestate and others.
The defendant insisted that he was entitled to set-off such claim under the statute, Th. Dig., 347, which reads as follows : “ All debts or demands mutually existing between
the parties at the commencement of the action, whether the same be liquidated or not, shall be proper subjects of set-off and may be pleaded accordingly.”
A set-off is in the nature of a cross action and may be pleaded in all cases in which, if a suit were brought upon the subject matter of the set-off, the demand of the other party may be set-off against it. This has never been allowed where the claim on the one side is assumpsit or debt, and on the other a trespass, or other action sounding in damages. The term “ demand” as used, refers to matters growing out of contract, express or implied. The utmost confusion would be introduced if matters of trespass, assault, slander, and the like, were construed to be “ demands” within the meaning of the law to be set-off against a debt; or, if in an action for slander or false imprisonment, a set-off of money due upon a promissory note or bond could be allowed. The next section shows what class of demands are intended. “ In all actions to which the defendant may intend to plead a set-off, he shall at the time of filing the plea file therewith a true eopy or copies of the subject matter of such set-off, and in case the jury shall find a balance for the defendant,” &c. It is clear that the law refers to such demands as are usually the subjects of set-off, to wit: arising out of contract. A bala/nce clearly implies this. The defendant has encountered the difficulty of applying the term in this case. He has not “ filed a copy ” of his set-off, because it was impossible to do [499] so. A “ bill of particulars” of such a “ demand” would be an anomaly. Damages growing out of some breach or fact connected with the subject matter of a contract, are allowed frequently by way of recoupment, as fraud in a sale, and matters of that character, but always relating to the subject matter of the plaintiff’s action. The demurrer was very properly sustained.
The fourth, fifth, sixth and seventh errors assigned, relate to alleged rulings of the court in rejecting certain testimony offered, and upon the competency of witnesses.
The paper purporting to be a bill of exceptions, which has been given above entire, does not show that any exceptions were taken to the ruling of the court in the progress of the trial, as has been already stated.
Error lies only on exceptions taken to the ruling of the law by the judge, and to the admission or rejection of the evidence. Beyond this, we have no power to look into the bill on a writ of error, as it is a creature of the statute and restricted to the points stated. Ex parte Crane, 5 Peters; 199; 4 How., 298, 401, 292, 418, 541; 1 Starkie, 465; 3 Fla., 114; 5 Fla., 467; 6 Fla., 516; 11 Fla., 138; and the numerous authorities cited in these cases.
A bill of exceptions is defined as follows : If the bill be not tacked to the record, it should set out the whole proceedings previous to the trial, but otherwise it begins with the proceedings after issue joined, and in either case it goes on to state the circumstances upon which it is founded, as that a witness was called to establish certain facts or evidence offered, or challenge made, or demurrer tendered; the allegations of counsel respecting the competency of the witness, the admissibility of the evidence or legal effect of it; the opinion of the court, the exception of the counsel to the opinion, &c. Bull. N. P., 317; Field, 788; 2 Dunlap’s Prac., 643.
But it is presumed that the counsel who prepared the bill in this case considered that the memorandum of the testi[500] mony signed by the witnesses and copied into this record, and the statement signed by the'witnesses as to the rulings of the court and the exceptions taken thereto, was a part of the “ record” and supeseded the formal presentation thereof by means of a bill of exceptions. The present constitution of this State provides- that “ all the evidence” taken on a trial shall be written by the clerk under the control of the court, signed by the witnesses and “ filed with the papers in the case.”
Depositions in writing have always been allowed to be taken in this State, to be used on the trial, and were always “ filed by the clerk with the papers in the case.” Yet there has never been any exception made by the court in reference to this written evidence on file ; it has always been required that it be presented on appeal or writ of error, by means of the bill of exceptions.
It is, however, beyond question that the clerk is merely required to reduce to writing the evidence to be signed by the witness. The constitutional provision does not require the clerk to note down everything that he may hear from the court and counsel. He may as well undertake to write down everything said by 'counsel in addressing the court or jury, and by the court to counsel or witnesses, as to note the questions, the objections and the ruling of the court. The witness is to sign the “evidence” and not the rulings of the court or speeches of counsel, though these be by chance incorporated in the body of his testimony. If the clerk’s notes of the ruling of the court are to be taken as a verity, without the signature of the judge thereto, his blunders might work irreparable mischief. “ Such a practice, (say the court in Proctor vs. Hart, 5 Fla., p. 470,) if sanctioned, would obviously lead to great looseness and uncertainty, and might work irreparable injury to parties litigant, for it would be to substitute the testimony, of the clerk as to what was submitted to the jury for that of the judge, who alone is authorized to attest the matter. Indeed, it is beyond the province of [501] the clerk in the exercise of his official duty to certify to the existence of any matter which is not a matter of record,” &e.
The testimony as written by the clerk and signed by the witness, filed among the papers, is thus preserved, and it is thus rendered exceedingly convenient to prepare a bill of exceptions by means thereof; but as it is no part of the duty of the clerk to noté everything that transpires on the trial, his memoranda of matters other than the evidence cannot be noticed, unless it be certified by the judge and made substantially a bill of exceptions, any recognition of such matters not certified by the judge would not be warranted by law.
¥e cannot, therefore, recognize the memoranda of the clerk, and as the paper purporting to be a bill of exceptions in this case does not show that exceptions were taken at the trial to the rulings of the court, we must decline to consider the 4th, 5th, 6th and 7rh errors assigned, the matters referred to not being lawfully before this court.
The general exception to the refusal of the j-udge to sign exceptions to the rulings of his predecessor was unnecessary. The former judge did note and sign the rulings and exceptions, and they are in the record.
The judgment of the Circuit Court is affirmed with costs.