Dickinson, Judge,
delivered the opinion of the court:
The only question presented on the part of the plaintiff in error, for our consideration, is as to the correctness of the instructions to the jkhird, its application to the particular debt. 2 Starkie, 594; Harlan vs. Wingate's Alm'r, 2 J. J. Marshall, 138; 3 Starkie, 1084. Wo do not deem it necessary to comment upon the cases to which this plea can be applied; for that payment can in numerous instances be given in evidence under the plea of non assumpsit, there is no doubt; and this principle is fully sustained in the case of Dale vs. Tollett, Burrows R. 2221. Where the same plea had been put in, and Lord Mansfield in delivering the opinion of the court, said, “the plaintiff could recover no more than he was justly entitled to in equity and conscience, which could be no more than what remains after deducting all just allowances which the defendant has a right to retain in his hands.”
Do the facts in this case, as spread upon the record, show that there was a payment of money or its equivalent? So far as regards the money payments, it appears that credit was given to the defendant, and what stronger evidence can be presented or offered, that the residue of the account was equivalent to money, and that it was considered and accepted of as such, than the acknowledgment of Faulkner himself, who, the witness testifies, examined the account, made some corrections therein, and then assented to its correctness, and agreed with the other party that it should be taken and considered as a credit and payment. That it was accepted as such by Faulkner there can be no question or doubt. Cases in which bills of exchange, bank notes, and negotiable notes on individuals have been held as equivalent to money, where there was an agreement to accept them as such, are numerous.
In general very slight evidence of acquiescence will show assent to any particular mode of payment. From the whole state of the case as presented to us in the plaintiff’s bill of exceptions, we aie of opinion that the Circuit Court erred in their instructions to the jury, “ that only so much of the accounts of the plaintiffs in error should be allowed as purported to be money payments, and that the rest should be excluded as inadmissible.”
The defendant in error, after the trial and the plaintiff’s exceptions had been allowed, also tendered his bill, which is signed by bystanders, in conformity with the statute, and made a part of the record, protesting against the signing of the defendant’s exceptions, upon the ground that “ no minutes or memoranda in writing of the evidence or instructions of the court had been taken at the trial, or had at any time been preserved.”
The defendant in error contends that the plaintiff’s exceptions ought to be disregarded, from the fact of eleven days intervening between the trial and the signing of the exceptions, no note or memoranda having been taken, and that the subsequent motion for a new trial is a waiver of any alleged cnor in the instructions of the court. It appears from the record that the case was tried on the 10th of Sept., 1839, — on the 12th the motion for a new trial was made — on the 16th the court refused the application — and on the 21st day of the same month the bill of exceptions was signed and allowed. The result of the investigation which we have made upon this objection, leads us to the conclusion that the courts have uniformly, where jusiice or circumstances required it, indulged the parties in preparing bills of exceptions. To deprive the courts of this discretion, or attempt to limit them in its exercise, where time is necessary or important to enable Suitors or the courts to prepare a full and proper statement of facts, would often tend to subvert the purposes of justice, and deprive parties of the means of redress. It is not to be presumed that courts will so far forget the high and solemn obligation under which they are acting, as to give credence to a state of facts of the truth and correctness of which there are any doubts.
It is an indulgence often allowed to parties, and sometimes necessary, where great labor is required in the preparation of their cases. In the present instance, we do not conceive that the lapse of time intervening between the several steps taken in the progress of this case, after the rendering of the verdict, so unreasonable as to create a doubt of the truth of the statements in the plaintiff’s bill of exceptions.
The defendant also insists that the plaintiff’s bill of exceptions ought to be excluded, and relies upon the cases of Gray and Hinkston vs. Nations, and Lenox vs. Pike and wife, and Smith and zoije, in support of his argument. But neither of these cases, in our opinion, bears him out. In the first, this court rejected that part of the record which purported to contain two bills of exceptions, because there was no evidence that the exceptions were taken during the trial, and they were not filed in the Circuit Court until after an appeal had been allowed, and that court had lost its power and control over the cause. In this case, however, it does affirmatively appear, not only by the record on the part of the plaintiff in error, but also by the defendant’s statements, that the plaintiff’s exceptions were taken during the trial, and immediately upon the overruling of the defendant’s motion for a new trial, and subsequently reduced to writing, and signed and sealed by the court, whereby it became a part of the record.
Nor is the defendant better sustained by the case of Lenox vs. Pike and wife, and Smith and wife, in which a paper purporting to be a statement of evidence, but not purporting on its face to be a bill of exceptions to any opinion of the court, had been included in the trans-script of the record, signed it is true by the Judge, but neither sealed nor ordered to be placed on file or on record, nor was there any agreement of the parlies that it should be placed on the record, nor did it appear whether such statement of evidence was a mere memorandum of the Judge’s for his own use, or for the information of this court.
From the views entertained of this case, we are clearly of opinion, that the Circuit Court erred in the instructions given to the jury, and for this reason, the defendant’s motion for a new trial ought to have been sustained. Judgment reversed.
Whereupon, Ashley & Watkins, for the defendant in error, filed the following petition for a rehearing:
The defendant in error in presenting his petition fora rehearing in this case is conscious that lie labors 'under great embarrassment. To seek, by force of argument, to induce the highest judicial tribunal in the land to reverse their own solemn adjudication, is to assume that the court have erred — an implied censure, revolting to that subtle pride of opinion and official station which pervades the breasts of humbler men.
But if it be the lot of humanity to err, it is'not the part of wise men to persist in error. In view of those embarrassments, the defendant respectfully and earnestly shows to the court here, the grounds upon which he asks for a rehearing.
Two preliminary questions are presented by the record in this case, which he deems entitled to the serious consideration of this court.
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Dickinson, Judge,
delivered the opinion of the court:
The only question presented on the part of the plaintiff in error, for our consideration, is as to the correctness of the instructions to the jkhird, its application to the particular debt. 2 Starkie, 594; Harlan vs. Wingate's Alm'r, 2 J. J. Marshall, 138; 3 Starkie, 1084. Wo do not deem it necessary to comment upon the cases to which this plea can be applied; for that payment can in numerous instances be given in evidence under the plea of non assumpsit, there is no doubt; and this principle is fully sustained in the case of Dale vs. Tollett, Burrows R. 2221. Where the same plea had been put in, and Lord Mansfield in delivering the opinion of the court, said, “the plaintiff could recover no more than he was justly entitled to in equity and conscience, which could be no more than what remains after deducting all just allowances which the defendant has a right to retain in his hands.”
Do the facts in this case, as spread upon the record, show that there was a payment of money or its equivalent? So far as regards the money payments, it appears that credit was given to the defendant, and what stronger evidence can be presented or offered, that the residue of the account was equivalent to money, and that it was considered and accepted of as such, than the acknowledgment of Faulkner himself, who, the witness testifies, examined the account, made some corrections therein, and then assented to its correctness, and agreed with the other party that it should be taken and considered as a credit and payment. That it was accepted as such by Faulkner there can be no question or doubt. Cases in which bills of exchange, bank notes, and negotiable notes on individuals have been held as equivalent to money, where there was an agreement to accept them as such, are numerous.
In general very slight evidence of acquiescence will show assent to any particular mode of payment. From the whole state of the case as presented to us in the plaintiff’s bill of exceptions, we aie of opinion that the Circuit Court erred in their instructions to the jury, “ that only so much of the accounts of the plaintiffs in error should be allowed as purported to be money payments, and that the rest should be excluded as inadmissible.”
The defendant in error, after the trial and the plaintiff’s exceptions had been allowed, also tendered his bill, which is signed by bystanders, in conformity with the statute, and made a part of the record, protesting against the signing of the defendant’s exceptions, upon the ground that “ no minutes or memoranda in writing of the evidence or instructions of the court had been taken at the trial, or had at any time been preserved.”
The defendant in error contends that the plaintiff’s exceptions ought to be disregarded, from the fact of eleven days intervening between the trial and the signing of the exceptions, no note or memoranda having been taken, and that the subsequent motion for a new trial is a waiver of any alleged cnor in the instructions of the court. It appears from the record that the case was tried on the 10th of Sept., 1839, — on the 12th the motion for a new trial was made — on the 16th the court refused the application — and on the 21st day of the same month the bill of exceptions was signed and allowed. The result of the investigation which we have made upon this objection, leads us to the conclusion that the courts have uniformly, where jusiice or circumstances required it, indulged the parties in preparing bills of exceptions. To deprive the courts of this discretion, or attempt to limit them in its exercise, where time is necessary or important to enable Suitors or the courts to prepare a full and proper statement of facts, would often tend to subvert the purposes of justice, and deprive parties of the means of redress. It is not to be presumed that courts will so far forget the high and solemn obligation under which they are acting, as to give credence to a state of facts of the truth and correctness of which there are any doubts.
It is an indulgence often allowed to parties, and sometimes necessary, where great labor is required in the preparation of their cases. In the present instance, we do not conceive that the lapse of time intervening between the several steps taken in the progress of this case, after the rendering of the verdict, so unreasonable as to create a doubt of the truth of the statements in the plaintiff’s bill of exceptions.
The defendant also insists that the plaintiff’s bill of exceptions ought to be excluded, and relies upon the cases of Gray and Hinkston vs. Nations, and Lenox vs. Pike and wife, and Smith and zoije, in support of his argument. But neither of these cases, in our opinion, bears him out. In the first, this court rejected that part of the record which purported to contain two bills of exceptions, because there was no evidence that the exceptions were taken during the trial, and they were not filed in the Circuit Court until after an appeal had been allowed, and that court had lost its power and control over the cause. In this case, however, it does affirmatively appear, not only by the record on the part of the plaintiff in error, but also by the defendant’s statements, that the plaintiff’s exceptions were taken during the trial, and immediately upon the overruling of the defendant’s motion for a new trial, and subsequently reduced to writing, and signed and sealed by the court, whereby it became a part of the record.
Nor is the defendant better sustained by the case of Lenox vs. Pike and wife, and Smith and wife, in which a paper purporting to be a statement of evidence, but not purporting on its face to be a bill of exceptions to any opinion of the court, had been included in the trans-script of the record, signed it is true by the Judge, but neither sealed nor ordered to be placed on file or on record, nor was there any agreement of the parlies that it should be placed on the record, nor did it appear whether such statement of evidence was a mere memorandum of the Judge’s for his own use, or for the information of this court.
From the views entertained of this case, we are clearly of opinion, that the Circuit Court erred in the instructions given to the jury, and for this reason, the defendant’s motion for a new trial ought to have been sustained. Judgment reversed.
Whereupon, Ashley & Watkins, for the defendant in error, filed the following petition for a rehearing:
The defendant in error in presenting his petition fora rehearing in this case is conscious that lie labors 'under great embarrassment. To seek, by force of argument, to induce the highest judicial tribunal in the land to reverse their own solemn adjudication, is to assume that the court have erred — an implied censure, revolting to that subtle pride of opinion and official station which pervades the breasts of humbler men.
But if it be the lot of humanity to err, it is'not the part of wise men to persist in error. In view of those embarrassments, the defendant respectfully and earnestly shows to the court here, the grounds upon which he asks for a rehearing.
Two preliminary questions are presented by the record in this case, which he deems entitled to the serious consideration of this court.
First: Whether, according to the ancient and the later and better received opinions and practice of pleading, payment or any special matter in bar or avoidance of the action ought not to be pleaded specially. On this subject the attention of the court is called to Stephen on Pleading, (3d Am. Ed., 1837, p. 158.) Appendix, note 44, p. 57, p. 60, et seq; and Chitty's Plead. 472. in Appendix.
Second: Can the account attempted to be established by McDonald, the defendant below, be construed to be a payment, according to the legal understanding of the term, or does it not show a mutual indebtedness or cross account, contemplated by our statute concerning set off, and as such required to be specially pleaded, or given in evidence under the general issue with notice? Rev. Stat., title, Setoff.
The defendant in error might also claim that the motion of the defendant in the court below tor a new trial was a waiver of any alleged error in the instructions of the court, and was an application to the sound and equitable discretion of the court, the overruling of which is not a ground of error. But on these points the authorities are numerous and contradictory.
The ground on which the petitioner mainly relies for a rehearing. is that the opinion of the court, however correct on Us face, is founded on a mistaken view of the facts, as they appear upon the record, and it establishes a precedent contrary to all authority, and dangerous in practice.
The court, in their opinion, throughout distinctly assume it as true that the bill of exceptions was not signed and filed until eleven days after the trial — that he excepted at the trial and saved the point— whereas no such state of fact appears on the record.
This is, perhaps, the point upon which this whole case must turn. If the exceptions of McDonald were not properly taken, and in apt time, they do not form a part of the record, and are not entitled to that consideration which the’court has given them.
The facts, as they appear upon the record, are these: On the 4th of May, 1839, Faulkner filed his declaration, also a bill of particulars of his account, and process was executed on the same day. On the 10th of September the defendant pleaded non-assumpsit, to which issue was joined, and the court rendered judgment for the plaintiff for $¡127, damages assessed by the jury. Two days afterwards the defendant filed his motion for a new trial. Four days afterwards, on the sixteenth of September, the court overruled the motion for a new trial, and thereupon, the defendant, by his counsel, excepted, and asked and obtained leave to prepare said bill of exceptions, and also a statement of the testimony in the case. On the 21st day of September, the defendant filed his bill of exceptions, purporting to be filed on that day, and purporting on their face to be an exception to the opinion of the court in overruling his motion for a new tria!, and’ not to any thing which took place at the trial. That such a proceeding, in suffering that paper to be filed, under all the circumstances, was considered asan outrage, is evidenced by the bill of exception of Faulkner, which the court admitted to be true, but'refused to sign, and was thereupon signed by bystanders who had witnessed the whole progress of the cause, and who knew that no memoranda or note in writing of any such instructions or testimony had been taken at the trial, or preserved either by the court or the parties.
In a petition for a rehearing it would not, perhaps, be proper to go into a minute examination of all the tases on this subject. Suffice it to say that the universal doctrine is, that an exception to the opinion of the court, in admitting or rejecting testimony, must be taken and presented before the jury have retired from the bar of the court; and an exception to the instruction of the court must be taken and presented before the jury return into court with their verdict. In the English practice, when a bill of exceptions does not form a part of the judgment roll, but is afterwards tacked on to it, and much more length and more formality is used in reciting the proceedings, it is allowable to draw up the bill of exceptions in form, and present it to the Judge for his signature, after the trial, but it is indispensable that the matter of exception itself should be reduced to writing at the trial. And the petitioner invites the attention of the court to the following authorities. Petersdorf Ab. Vol. 9, p. 217, title Exceptions, Bill of; 2 Leigh's Nisi Prius, Appendix p. 1543, forms, &c.; Stephen on Pleading, 89; 1 Saunders on Plead, and Ev. p. 318; 1 Starkie Evidence p. 464; 2 Tidd's practice, (1 Am. Ed. 1807,)p. 788; 3 Black. Com. Chap. 24, p. 393; Wright vs. Sharp, Salk. p. 288; Jones, et al., vs. the Insurance Co. of North America, 4 Dallas p. 249; Morris vs. Buckley, and others, 8 Serg. and Rawle, p. 218; Stewart, and another, vs. the Huntington Bank, 11 Serg, and Rawle, p. 270; Sykes vs. Hanson, 6 J. R. 279; Milberry vs. Collins, 9 J. R. 445; Law vs. Merril, 6 Wend. 268; Shepherd and Stows vs. White, 3 Cowen 32; Launce vs. Barker, 10 J. R. 312; Holloway vs. Holloway, 1 Monroe 131; Givens vs. Bradley, 3 Bibb. 195; Riggs vs. McIlvain, 3 Mars. 360; Davis vs. Burns, et al. Missouri Rep. 264.
The only solitary case where a different practice was allowed, is the case of Gordon vs. Ryan, J. J. Marshall, p. 58, where the court indulged the party until the next term to prepare his bili of exceptions. I have not seen that case, but from the note of it given in Pirtle's Dig., title Bill of Exceptions, it seems that the indulgence was granted upon the express ground that the substance of the exceptions had been taken and reduced to writing at the trial.
To suffer a party to come in at any time after the trial and except or draw up a statement of the,testimony, would be utterly subversive of the ends of all legal proceedings.
The petitioner does not mean to say that the opposing counsel would prepare, or the Judge of the couú below certify to an ex-parte and untrue bill of exceptions or statement of evidence, but the irresistible presumption of law is, that they may be and are untrue.
Let any one come into our Circuit Court, in the midst of a three weeks session, criminal, common law and chancery cases all progressing on the same day, and observe the course of proceedings in that court, and he will then be. qualified to judge whether the ends of justice will ever be answered by allowing a party to take and prepare his exceptions and an cx-parte statement of testimony eleven days after the trial has elapsed, and when no exception was taken at the trial, nor any note in writing of any such instructions or testimony taken or preserved by any person whatever.
All of which is respectfully submitted.
Lacy, J.,
delivered the opinon of the court on said petition:
The court has carefully examined the grounds taken in the argument for re-hearing, and do not deem them tenable. All the positions assumed in the argument have been fully answered, except one, which wc will now proceed to dispose of. It is said that the opinion distinctly assumes the fact, that the bill of exceptions was taken at the trial, although it was not tiled or signed until eleven days afterwards. The opinion certainly proceeds upon this assumption, and the record fully warrants the conclusion.
There were two bills taken in the case. The first bill was taken by the defendant, in which he excepted to the opinion of the court overruling his motion for a new trial upon the following grounds: First, that the instructions of the court, excluding part of the evidence of the defendant was erroneous: Second, that the verdict of the jury was contrary to law and evidence. This bill of exceptions sets out the testimony excluded upon the the trial, and the record expressly states “ that upon the overruling of the motion for a new trial, the defendant thereupon excepted to the opinion of the court, and placed his opinion upon the record.” The Judge has certified under his hand and seal, the evidence to this court, and has declared that the exceptions were taken at the time he overruled the motion for a new trial. This fact can therefore be neither controverted nor denied, for it is a judicial record which cannot be disputed.
This bill of exceptions was filed on the 20th September, and although it was eleven days after the rendition of the verdict and judgment entered, still it has express reference to the time of the trial, so far as regards the introduction or rejection of the evidence. The fact that the evidence was given at, or on the trial, is fully demonstrated by the plaintiff’s bill of exceptions, taken and signed by the bystanders on the 25th of September, in which he controverts the competency of the court to sign a bill of exceptions after the lapse of time spoken of. His bill of exceptions admits that the instructions and evidence upon which they were based were a part of the proceedings upon the trial. Having admitted this fact by his own bill of exceptions, and thereby makes that certain which might be regarded as * somewhat doubtful before, he is estopped from saying that the in-instructions and evidence were not had and given upon the trial of the cause. Besides, the record being a judicial document, and alleging the fact to be so, the truth of it cannot afterwards be put in issue in any manner whatever. The motion for rehearing must therefore be overruled.