Mr. Justice NELSON
delivered the opinion of the court.
This is a writ of error to the circuit court of the United States for the eastern district of Louisiana. The plaintiffs seek to recover the amount of a bill of exchange, drawn by the firm of Nicholson and Armstrong, upon the defendant, for $2,540.65, and accepted by him, in favor of James Arthurs and Brothers, dated March 1, 1848, and payable twelve months from date, and indorsed by the payees to the plaintiffs. The bill of exchange is set forth in the petition, according to the practice in the State of Louisiana, with a prayer that the defendant be condemned to pay the amount due.
The defendant, in his answer, denies the allegations in the petition ; and also sets up, that the bill was accepted for the balance of the price of a sugar-mill constructed by the drawers, for his plantation in "West Baton Rouge; that the mill was badly constructed, and defective both in the workmanship and materials, and had failed in its operation to do the work intended; that on making known the defects to the drawers, they promised to send competent workmen, before the next ensuing season for grinding sugar, to make the necessary repairs, and put the mill in complete working order, at their own expense; that, confiding in this promise, the defendant accepted, unconditionally, the bill in question. The answer also sets forth, that the drawers had failed to send hands to repair the mill, as agreed, whereby the defendant has suffered damages to the amount of $1,835.65, which sum he demands in reconvention, and asks judgment against the plaintiffs.
The defendant further sets forth, that the payees and indorsees had notice of the defects in the mill, and of the undertaking of. the drawers at the time of the acceptance, before the negotiation or transfer of the same.
The cause was tried without a jury; and, on the trial, the defendant admitted the signatures to the bill; and also gave evidence, which was admitted but excepted to, of the facts set up in the answer.
The court gave judgment for the plaintiffs, for $1,743.50. The case is now before us on a writ of error, brought by the plaintiffs, claiming that they were entitled to judgment for the full amount of the bill.
Two preliminary objections have been taken by the counsel for the defendant in error: 1. That, inasmuch as other evidence -yfas..given on the trial in the court below than that which has been brought on the record, or is found in the bill of exceptions, for aught that appears, the judgment may have been founded upon that evidence; and, 2. That the cause having been tried without a jury, and the judge having determined, the
case upon both the facts and the law, error will not lie for the admission of improper testimony.
It was decided in Phillips
v.
Preston, 5 How. 278, in the case of a writ of error to the circuit court of the United States in Louisiana, and where the trial by jury had been waived, that the State practice regulating appeals for reviewing the decisions of the inferior courts, which required the return of all the evidence to the appellate court, did ndt apply; and that only so much of it need be returned, and, indeed, no more should be returned, than was necessary to present the legal questions decided by the court, and which were sought to be reviewed. Evidence bearing exclusively upon questions of fact involved in the case, only incumber the record and embarrass the hearing in this court, as these questions are not the subject of review on error. The mere fact, therefore, that other evidence was ■ given on the trial besides that which is found in the bill of exceptions, furnishes no objection to an examination of the questions of law presented by it.
If that evidence bore upon these questions, and might influence our decision upon them, the defendant in error should have brought it upon the record, or incorporated it in the bill of exceptions. His neglect to do so implies that it could properly have no such effect, if returned.
As to the other objection. It was held, in Field and others
v.
The United States, 9 Pet. 182, and recognized in several subsequent, cases, that in a cause where the trial by jury had been waived, the objection to the admission of evidence was not properly the subject of a bill of exceptions; and the reason given is, that if the evidence was improperly admitted this court would réject it, and proceed to decide the cause.as if it were not in the record. This, perhaps, is unobjectionable; it certainly is so, as far as the evidence improperly admitted bears upon a question of fact in the cause; for, when rejected, if there is still any proper evidence tending to support the judgment of the court below, the decision cannot be reviewed on a writ of error. The error, .in this aspect, would' be unimportant, because not the subject of an exception, .the question involved being one of fact.
If, upon the rejection of the evidence, no testimony would remain necessary to support the judgment of the court, then the mistake would be one of law, and the proper subject of a writ of error.
The case of the refusal of proper evidence on the trial is subject to very different considerations from those applicable to the improper admission of it. The. exclusion of the evidence might change the legal features of the cause, and lead to a determination of it upon- principles wholly inapplicable, in case the evidence
had been admitted; nor can we assume that the testimony-offered and rejected would .have been proved, if it had not been excluded, and revise the judgment of the court upon that assumption; because the offer of evidence to prove a fact, and the ability to make the proof, are very1 different matters. If the court, instead of rejecting, had allowed the evidence, the party might have failed in the proof, and the case.in the result remain the same as before the improper exclusion.
We think, therefore, that the improper rejection of testimony oh the trial before-the judge, where the jury has been dispensed with, should constitute the subject of review on the writ of error, as in the case of a trial before the jury.
There is one qualification applicable to this peculiar mode of trial, that should be noticed. If the testimony rejected is but cumulative, and relates exclusively to a question of fact involved in the case, the rejection may be immaterial, as the decision of that question upon the evidence already in, by the judge, may be regarded as well-warranted.
This principle is'sometimes applied in cases of writs of error, where the trial below has been before a jury, if it be seen that the admission of the testimony could not have properly influenced the jury to a different conclusion on the question of fact. The cases will be found collected in Cowen and Hill’s notes, vol.4, pp.775, 776 (3d ed.); see, also, 1 Duer, (Sup. Court R.,) pp. 431-434. It must be admitted that the courts which have adopted this principle apply it with great caution where the trial has been had before a jury, and require a clear case to be made out that the rejection has worked no prejudice to the party. Other courts have denied its application altogether, and refused to look into the record to see whether the evidence might or might not have influenced the jury.
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Mr. Justice NELSON
delivered the opinion of the court.
This is a writ of error to the circuit court of the United States for the eastern district of Louisiana. The plaintiffs seek to recover the amount of a bill of exchange, drawn by the firm of Nicholson and Armstrong, upon the defendant, for $2,540.65, and accepted by him, in favor of James Arthurs and Brothers, dated March 1, 1848, and payable twelve months from date, and indorsed by the payees to the plaintiffs. The bill of exchange is set forth in the petition, according to the practice in the State of Louisiana, with a prayer that the defendant be condemned to pay the amount due.
The defendant, in his answer, denies the allegations in the petition ; and also sets up, that the bill was accepted for the balance of the price of a sugar-mill constructed by the drawers, for his plantation in "West Baton Rouge; that the mill was badly constructed, and defective both in the workmanship and materials, and had failed in its operation to do the work intended; that on making known the defects to the drawers, they promised to send competent workmen, before the next ensuing season for grinding sugar, to make the necessary repairs, and put the mill in complete working order, at their own expense; that, confiding in this promise, the defendant accepted, unconditionally, the bill in question. The answer also sets forth, that the drawers had failed to send hands to repair the mill, as agreed, whereby the defendant has suffered damages to the amount of $1,835.65, which sum he demands in reconvention, and asks judgment against the plaintiffs.
The defendant further sets forth, that the payees and indorsees had notice of the defects in the mill, and of the undertaking of. the drawers at the time of the acceptance, before the negotiation or transfer of the same.
The cause was tried without a jury; and, on the trial, the defendant admitted the signatures to the bill; and also gave evidence, which was admitted but excepted to, of the facts set up in the answer.
The court gave judgment for the plaintiffs, for $1,743.50. The case is now before us on a writ of error, brought by the plaintiffs, claiming that they were entitled to judgment for the full amount of the bill.
Two preliminary objections have been taken by the counsel for the defendant in error: 1. That, inasmuch as other evidence -yfas..given on the trial in the court below than that which has been brought on the record, or is found in the bill of exceptions, for aught that appears, the judgment may have been founded upon that evidence; and, 2. That the cause having been tried without a jury, and the judge having determined, the
case upon both the facts and the law, error will not lie for the admission of improper testimony.
It was decided in Phillips
v.
Preston, 5 How. 278, in the case of a writ of error to the circuit court of the United States in Louisiana, and where the trial by jury had been waived, that the State practice regulating appeals for reviewing the decisions of the inferior courts, which required the return of all the evidence to the appellate court, did ndt apply; and that only so much of it need be returned, and, indeed, no more should be returned, than was necessary to present the legal questions decided by the court, and which were sought to be reviewed. Evidence bearing exclusively upon questions of fact involved in the case, only incumber the record and embarrass the hearing in this court, as these questions are not the subject of review on error. The mere fact, therefore, that other evidence was ■ given on the trial besides that which is found in the bill of exceptions, furnishes no objection to an examination of the questions of law presented by it.
If that evidence bore upon these questions, and might influence our decision upon them, the defendant in error should have brought it upon the record, or incorporated it in the bill of exceptions. His neglect to do so implies that it could properly have no such effect, if returned.
As to the other objection. It was held, in Field and others
v.
The United States, 9 Pet. 182, and recognized in several subsequent, cases, that in a cause where the trial by jury had been waived, the objection to the admission of evidence was not properly the subject of a bill of exceptions; and the reason given is, that if the evidence was improperly admitted this court would réject it, and proceed to decide the cause.as if it were not in the record. This, perhaps, is unobjectionable; it certainly is so, as far as the evidence improperly admitted bears upon a question of fact in the cause; for, when rejected, if there is still any proper evidence tending to support the judgment of the court below, the decision cannot be reviewed on a writ of error. The error, .in this aspect, would' be unimportant, because not the subject of an exception, .the question involved being one of fact.
If, upon the rejection of the evidence, no testimony would remain necessary to support the judgment of the court, then the mistake would be one of law, and the proper subject of a writ of error.
The case of the refusal of proper evidence on the trial is subject to very different considerations from those applicable to the improper admission of it. The. exclusion of the evidence might change the legal features of the cause, and lead to a determination of it upon- principles wholly inapplicable, in case the evidence
had been admitted; nor can we assume that the testimony-offered and rejected would .have been proved, if it had not been excluded, and revise the judgment of the court upon that assumption; because the offer of evidence to prove a fact, and the ability to make the proof, are very1 different matters. If the court, instead of rejecting, had allowed the evidence, the party might have failed in the proof, and the case.in the result remain the same as before the improper exclusion.
We think, therefore, that the improper rejection of testimony oh the trial before-the judge, where the jury has been dispensed with, should constitute the subject of review on the writ of error, as in the case of a trial before the jury.
There is one qualification applicable to this peculiar mode of trial, that should be noticed. If the testimony rejected is but cumulative, and relates exclusively to a question of fact involved in the case, the rejection may be immaterial, as the decision of that question upon the evidence already in, by the judge, may be regarded as well-warranted.
This principle is'sometimes applied in cases of writs of error, where the trial below has been before a jury, if it be seen that the admission of the testimony could not have properly influenced the jury to a different conclusion on the question of fact. The cases will be found collected in Cowen and Hill’s notes, vol.4, pp.775, 776 (3d ed.); see, also, 1 Duer, (Sup. Court R.,) pp. 431-434. It must be admitted that the courts which have adopted this principle apply it with great caution where the trial has been had before a jury, and require a clear case to be made out that the rejection has worked no prejudice to the party. Other courts have denied its application altogether, and refused to look into the record to see whether the evidence might or might not have influenced the jury.
In cases where the trial by jury has been waived, and the facts as well as the law submitted to the judgment of the court, a more liberal application may be safely indulged; though, if the determination .of" the question of fact be against the party offering the evidence, we do not" perceive why the rejection should not be regarded as error reviewable on a bill of exceptions.
'A
more difficult question arises in these cases, where the-facts as well as the law are submitted to the court, in reviewing on exceptions the correctness of the ruling of the law involved in rendering the judgment.
In trials before a jury, these come-, up on the instructions prayed for, or by exceptions to the charge. The questions of law are thus separated from the questions of fact, — the former to be determined by the court, the latter by the jury. But, where both questions are submitted to the court, and both determined
at the same time, and by the same tribunal, the separation is more difficult. The principles of - law applicable to the case are so dependent upon the facts, and the finding of these in the case supposed exclusively within the province of the judge, who is substituted for the jury, it would seem, as a general proposition, nearly impracticable for the appellate court to ascertain from the case the principles of law that had governed the decision; especially in the absence of his opinion in the case.
But these principles must be ascertained, to enable the court to review them on a writ of error, as the bill of exceptions lies only-upon some point arising either upon the admission or refusal of evidence, or is a matter of law arising from a fact found, or not denied, and which has been overruled by the court. 4 How. 297; 8 J. R. 495; 2 Caines’s R. 168.
As an illustration of the difficulty, and to aid us in the solution of it, we may refer to a late act in England, and the decision of the common bench under it. It is the act of 13 and 14 Victoria, c. 61, which conferred upon the county courts a limited jurisdiction in civil cases, and gave an appeal from their determination “ in a point of law, or upon the admission or rejection of evidence,” “ to any of the superior courts of common law at Westminster.”
It will be seen that an appeal is given here upon the same ground that a bill of exceptions was given by the statute of Edward I. c. 31. The parties were at liberty to waive a trial by jury, and submit the facts, as well as the law, to the judge of the county court. A case came up before the common bench, that had been thus submitted, involving a question upon the statute ©f limitations, and which presented the difficulty we are now considering.
Maulé, J.,
who delivered the opinion of the court, in endeavoring to overcome it, observed: “ It may be, that, if, upon the case stated by the parties or by the judge, it appears to the court of appeal, that the decision which has been come to can be sustained by a particular view of the facts, which does not render it necessary to arrive at the conclusion -that he has erroneously decided the point of law before him, this court may have no power to review the judgment; yet, that where it is manifest from the facts stated, that in order to arrive at the conclusion he has arrived at, the judge must have decided a matter of law in a certain way, that will be a determination in point of law, with respect to which an appeal will lie. So, that, supposing there be a judgment which can be sustained, consistently with the law, by any view that can be taken of the facts stated, such a judgment probably cannot be reversed; yet, still, where the judge states the facts which were before him, and these facts will sus
tain his judgment upon one view of the law only, and that an incorrect one, this court may .have jurisdiction to entertain the appeal.”
This view is directly applicable to the case of a bill of exceptions, where the jury has been dispensed with, and the judge substituted in its place, to pass upon the facts as well as the law, and furnishes the rule by which the point of law may be ascertained that was decided in rendering the judgments intended to be reviewed.
In order, however, to disembarrass the proceedings, as far as practicable, in this peculiar mode of the trial of a common law casé, and to enable the appellate court to reexamine the point or points of law involved, the counsel, after the close of the evidence, should present the propositions of law which, it is claimed, should govern the decision; and the court should state the rulings thereon, or in coming to its determination. And, in the return to the writ of error, so much of the evidence, and no more, should be incorporated in the bill of exceptions, as was deemed necessary to' present the points of law determined against the party bringing the writ. No technical exception need be stated, except in the case of the rejection or admission of evidence. As the rulings in the final determination do not take place upon the trial, or need not, the exception would be impracticable.
We have stated more at large the proper practice in bringing up for review cases of this peculiar character, than was necessary to the disposition of the one before us, as they are frequently occurring, and the practice governing them not very well settled.
As it respects the case in hand, we have already shown that the state practice of Louisiana, in appeals, does not apply to the case of writs of error from this court to the circuit courts; and, hence, the circumstance that other evidence had been given and was ■ before the court, than what appeared in the bill of exceptions, furnished no objection to the reexamination of the point of law there presented; and that if the other evidence was deemed material, it should have been brought upon the record by the defendant in error. We must assume, therefore, that the bill of exceptions contains all the testimony deemed material to raise the point of law involved.
That shows the admission of the proof of a state of factsj as a special defence to the bill of exchange, which had been set up, and the only one set up, in the answer, namely, that the bill had been accepted for the balance of the price of a sugar-mill constructed and sold to the defendant by the drawers; that the mill was badly constructed, and defective in workmanship and materials ; that, at the timé of the acceptance, the drawers promised
at some future day to make the necessary repairs; that they had failed to make them, by which the defendant had suffered damage to the amount of $1,835,60, which he claimed in abatement of the face of the acceptance, and that the plaintiffs had notice of these facts before the transfer of the paper to them.
The court below reduced the recovery to $1,743.50, which must have been on the ground of this special defence, as no other appears in the record.
Now, we agree, that if this suit had been between the original parties, the defence would have been unobjectionable. 9 How. 213; Code of Practice, 374-377; 6 N. S. 671; Ib. 688. But, the plaintiffs are
bond fide
holders of the paper, for value, and, therefore, not subject to this defence, or to any abatement of the face of the bill, arising out of the transaction between the original parties.
It is true, the plaintiffs knew, at the time they took the paper, that it was given as part of the price for the sugar-mill, and that the mill'had been defectively constructed; but, they also knew, that the defendant, upon the promise of the builders to make the necessary repairs, had agreed to accept the bill unconditionally, and had. accepted it accordingly. They knew, therefore, that he looked to this undertaking for indemnity, and not to any conditional liability upon the acceptance.
The transaction, therefore, which is brought home to the plaintiffs, lays no foundation, in law or equity, to impeach the paper in their hands.
. The ruling of the court below, in this respect, was consequently erroneous, and the judgment must be reversed.
Order.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said circuit court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said circuit court, for further proceedings to be had therein, in conformity to law and justice, and the opinion of this court.