¶1(concurring). My vote for affirmance of this conviction is based, first, on the absence of any exception challenging a ruling of the trial court. There is a stipulation between counsel of certain occurrences at the trial, but the testimony is not printed and there is not even a bill of exceptions in the old form. Counsel state that this course was pursued in order to avoid the great expense of printing about one thousand pages of testimony, but in the absence of a bill nf exceptions' or a certification of the entire proceedings at the trial, our uniform practice has been to affirm the judgment because there is nothing to review. Synnott v. Shaw, 77 N. J. L. 803.
¶2But if the alleged error assigned is to be considered, the judgment was properly affirmed in the Supreme Court on the ground taken in that court that any incompetency of the witnesses known to the defendant should have been urged when they were called to the book, and not deferred until their examination in chief was concluded. Berryman v. Graham, 21 N. J. Eq. 370; Howell v. Ashmore, 22 Id. 261 (at p. 267) ; Wigm. Ev., 486, 586; Greenl. Ev., § 421.
¶3Either one of these grounds was determinative of the writ of error, and T see no good reason for resorting to the obiter dictum in State v. Henson, 66 N. J. L. 601, the result of which ÍS' to wipe off the statute book one of the penalties for perjury prescribed by the Crimes act, by treating a provision in the Evidence act as pro tanto a repealer.
¶4Mr. Justice Ivalisch authorizes me to say that he concurs in these view's.
¶5*498For affirmance—-The Chancellor, Svayze, Trenohard, Parker, Mintukn, Kalisci-i, Black, White, Heppeniieimbr, Williams, Gardner, Ackeeson, Van Buskirk, JJ. 33.
¶6For reversal—None.