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14

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333

LENOX against PIKE.

ERROR to Arkansas Circuit Court.

Where, to the transcript of the record sent up to the Supreme Court a paper is found appended, purporting to be a statement of the testimony given in the case, detailing the evidence, signed by the judge below, and marked filed by the clerk, it is no part of the record, and cannot be regarded in the Supreme Court.

Whatever proceedings or facts the law or the practice of the courts requires to be enrolled, constitute and form a part of the record--such as all judicial writs and process, the finding of the jury, the judgment of the court, and the like.

Whatever is not necessary to be enrolled, such as oral and written testimony, exceptions,
&c., constitute no part of the record, unlesss they are expressly made so by order
of the court, by agreement of parties, by demurrer to evidence, by oyer, by bill of
exceptions, or by special verdict.

The statement of the evidence in this case, must be regarded as a mere loose paper
on the files of the clerk, or the memorandum of the judge of his notes on the trial.
If a party wishes to avail himself of any matter upon error, which does not necessarily
appear of record, he must file exceptions at the trial, or request a special verdict.
Even if the statement of testimony in this case could be considered as a bill of exceptions,
still it could not be considered in the Supreme Court, as it does not appear to have
been taken during the trial, or upon any motion made in the court below.
Bills of exceptions are only allowable during the trial, and that they were then taken
must appear on their face. If reduced to form, and signed, after the trial, it must
appear that they were taken at the trial.

He who impeaches the judgment of an inferior court, is bound to show to the appel.
late tribunal in what the error consists, of which he complains. He must be able to
lay his finger upon the error, and point it out, if he seeks to reverse or correct it.
And in the appellate court, every thing will be presumed in favor of the verdict, and the
judgment of the court below, except what is affirmatively disproved by the record,
or what the court is bound judicially to take notice of.

A verdict in detinue, finding the slaves in the declaration mentioned, to be the property of the plaintiff, affixing their value severally and respectively, finding their detention by the defendant, and awarding a certain amount of damages for the detention, is valid.

This was an action of detinue, commenced in the court below by Pike and wife and Smith and wife, against Lenox, for certain slaves. The declaration was in the usual form. The defendant pleaded the general issue, to which the plaintiff joined issue, and the case was tried by a jury. The jury found the slaves to be the property of the plaintiffs, found their values respectively, amounting in the aggregate to $3,500, and $2,710 for their hire.

Immediately after the entry of the judgment, in the transcript of the record, follows a bill of exceptions, stating simply, that defendant moved for a new trial, because the verdict was contrary to law and evidence, which motion was overruled by the court, to which defendant excepted.

Lenox against Pike.

"The following

Then follows a paper, commencing in this way: is the testimony on the part of the plaintiff," &c., detailing all the testimony, and concludes thus: "A copy of the record in this cause, as also the order of the court directing the sale which here insert. E. L. Johnson, Judge. Filed October 12, 1838. Gco. W. Stokes, Clerk.

As the case was decided on a preliminary point, it is unnecessary to state the facts of the case.

FREEMAN, ASHLEY, & WATKINS, for plaintiff in error:

Is the record in this case sufficient to raise a question of law? All objections to the return of the clerk to the writ of error, are waived by the argument and submission of the case to the court upon that record.

If, then, this case goes off, upon the merest technicality, and not upon its merits, upon the failure of the Judge below to incorporate the evidence upon a bill of exceptions, according to the forms of law, when such was evidently his intention, and when, by the law of the land, the plaintiffs below had no right to recover, it will be an outrage upon justice, and a scorn and reproach to the law.

See cases cited in the case of Gray vs. Nations, 1 Ark. Rep. 557, showing the right of certifying the evidence in the case.

The court will find upon reference to the assignment of errors, and the joinder thereto, that the testimony, as certified by the Judge below, is claimed by the one, and tacitly admitted by the other to be a part of the record. Otherwise, if the assignment of errors was so irregular as to allege error by means of a paper which was not a part of the record, the defendants here ought to have pleaded the assignment, or more properly moved to strike it off the files of the court. This they did not do. Since the defendants in error rely upon the technical objections, we pray the court to notice every feature in the case which will enable it to take cognizance, and do justice between the partics. What can be the objeel of requiring an assignment of errors, and a joinder thereto, if they do not bind and preclude the parties as other pleadings?

PIKE, contra:

This court is entirely uninformed as to the evidence given in the

Lenox against Pike.

court below. No part of the evidence is legitimately before them, and they are absolutely prohibited by most positive and peremptory rules, from noticing the paper appended to the transcript, and purporting to be a statement of the evidence signed by the Judge. It is no part of the record.

The rule on this subject is thus laid down by an accurate writer on the subject. "Whatever the error be, and in whatever stage of the case it occur, it must appear on the record, in order that a writ of error may be sustained. And if the matter complained of do not necessarily appear on the record, the party contemplating a writ of error, should cause it to appear there, by filing exceptions, or requesting a special verdict." Howe's Prac. 465.

In McFaddin v. Otis, 6 Mass. 323, the defendants moved for a new trial, on the ground that the court had instructed the jury contrary to law, and at their request, the judge reported the evidence and his instructions. The motion for a new trial was overruled, and the defendant's counsel said he was instructed to remove the case into the Supreme Court of the United States by writ of error.

Upon which, the Superior Court of Massachusetts said, that the report of the judge was not made a part of the record, and, as the nature of the defence was apparent only from the report, he could have no relief by error to the Supreme Court of the U. States; and, that, if he had contemplated a writ of error, he ought either to have filed a bill of exceptions, or requested a special verdict.

So in the case before the court there is merely a report of the evidence, signed by the judge, and found among the papers. It is no where even stated to have been prayed to be made a part of the record-the filing of it is not noted of record; and the case just quoted is as perfectly and conclusively in point, as any case could by possibility be.

So in Coolidge v. Inglee, 13 Mass. 50, the same court said, that the report of the judge is not a part of the record; nor are the reasons given for the final opinion of the court; nor the papers and documents filed in the case.

So in Storer v. White, 7 Mass. 118, the defendant was defaulted. and the plaintiff filed the note declared on. as evidence of damages.

Lenox against Pike.

The error assigned was variance between the note and declaration; and the court said, in the case before us, there appears to be no error on the record. For although such a note as is described in the assignment of errors was filed in the case, yet we cannot take notice of it as a part of the record, any more than we could of a deposition, or other piece of evidence filed."

Pierce v. Adams, 8 Mass. 383, was a case of the same kind, and the court there said, "It cannot appear to us that the note, a copy of which is sent up with the record, was the note on which the action was brought. But at any rate, it was merely evidence, and the defendant should have objected to its admission at the trial. If his objection had been overruled, he should have filed his bill of exceptions, and there would then have been matter on record to support his writ of error."

In this case the court finds among the papers an informal statement of the testimony in the case, which appears to be signed, but not sealed by the judge, which is not noticed on record, nor incorporated in a bill of exceptions; but was simply marked filed on the 12th of October, after the trial of the cause, and after the motion for a new trial was overruled. And the presumption therefore is, that it was a mere memorandum taken by the judge for his own private use, and inadvertently left among the papers. Most clearly is it no part of the record, and even were it a bill of exceptions, it would be excluded under the rule laid down in Pope v. Evans, and Gray v. Nations, by this court; for, in the very words of this court in the latter case, if exceptions," it does not appear that they were taken during the trial or upon any motion made" in the court below.

"There are five legitimate methods by which matters of fact may be spread on the record. By consent of parties-by special verdict— by oyer-by bill of exceptions—and by demurrer to evidence—and there is no other method." Cole v. Driskell, 1 Blackf. 16; Dougherty v. Campbell, ib. 40. See also Gist v. Higgins, 1 Bibb, 304.

In Goldsbury v. May, 1 Litt. 254, the court said: "There appear ⚫ numerous instructions to the jury in the cause, signed by the Judge and copied by the clerk. To some of them the word "given,” and to others the word "refused," is annexed. But none of these, except

Lenox against Pike.

one, is made part of an exception, or is otherwise connected with the record. Although there may be numerous loose papers in a cause, signed by the Judge, and the clerk shall incorporate them improperly into the copy which he makes out for this court, we cannot notice them as a part of the record, unless they have been made part of it by exceptions or order of the court below." And see Ashby v. Sharp, 1 Litt. 166. Patton v. Kennedy, 1 Marsh. 389.

So in Garland v. Bugg, 1 Hen. & Mun. 376, it was decided that an affidavit for continuance was no part of the record, unless made so by exception. And see Pendleton v. U. States, 2 Brock. 75, that no fact not stated in a bill of exceptions will be noticed, on error. Sec also Butcher v. Reil, 1 Mo. Rep. 262; Davis v. Burns, ib. 261; and Davis v. Hays, ib. 270.

So in Reid v. Rensselaer Glass Factory, 3 Cowen 387, by Foot arg. it is laid down that there are but three ways of getting the facts upon the record. These are, by demurrer to evidence, bill of exceptions, or special verdict; and though the court of errors agreed that a history of the case might be brought up differently in New-York under their statute authorizing references, yet the whole court admitted that according to the English law the position of Foot was correct. Sec 5 Cowen 592. SPENCER, Senator, said, that "a case settled before a judge, in an ordinary trial at law, forms no part of the record of judgment, and is not brought up by a writ of error." lb. 605. And see Lanuse v. Barker, 10 J. R. 312.

And see upon this point, Caldwell v. Richards, 2 Bibb 331; Marshall v. Reid, 1 Bibb 327; Hardin 507; Fennie v. Martin, 1 Bibb 41; McLain v. Lillard, 1 Bibb 146; Adams v. Macey, 1 Bibb 328; 3 Marsh 131; Faulkner v. Wilcox, 2 Lit. 370.

A bill of exceptions must appear on its face, to have been taken and signed at the trial of the cause. If afterwards reduced to form and signed, it must be signed nunc pro tunc, so as to appear to have been taken and signed during the trial. Law v. Merrills, 6 Wend. 278; Walton v. U. States, 9 Wheat. 651; Exparte Bradstreet, 4 Peters 107; Shepherd v. White, 3 Cowen 32.

Will a bill of exceptions or writ of error lic for refusing a new trial? See Law v. Merrils, 6 Wend, 278; Henderson v. Moore, 2 Cond.