M'Fadden v. Otis

6 Mass. 323

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1810
• Status: Published

Opinion

It was then observed to him by the Court, that the report of the judge was not made a part of the record, and as the nature of the defence, resting on the embargo laws, was apparent only from the report, he could have no relief by error to the Supreme Court of the United 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.

The district attorney then moved that the defendants might be restored to a right to review the cause, that upon the trial on review he might file a bill of exceptions, or have the facts found specially; he declaring that his clients, in waiving their right to review, acted agreeably to his advice, which was given by him on the persuasion that they might have relief by error, as well on the facts reported by the judge, as on a bill of exceptions or a special verdict. Upon his filing an affidavit of the same import with his declaration, the Court ordered that the defendants be restored to the right of review which they had waived, and that judgment be entered for the plaintiff on the verdict, as if the defendants had not excepted against it.