[441]*441Mr Justice Story
delivered the opinion of the Court.
This is a writ of error to the district court of the United States for the eastern district of Louisiana.
The facts., disclosed on the record are substantially as follows:
The suifc-'was originally commenced by an attachment, brought in.the parish court of New Orleans, and removed, on the petition of defendant, into the district court of the United States for the eastern district of Louisiana: the. plaintiffs being citizens of Louisiana, and the defendant a citizep of Massachusetts.
' The petition of the plaintiffs set out the ground of . their action to be certain sales of tobacco, made by them to one Eben Fiske, as the factor and agent of the defendant, and for his account, at New Orleans, in June and July 1825; and certain bills of exchange drawn in their favour by Fiske at New Orleans, on the defendant at Boston, at several dates from the 2d to the 20th of July 1825, for the amounts of such sales. The defendant’s answer (filed in the district court after the removal of the cause from the parish court) contains a general traverse of the allegations of the plaintiffs’ petition, and tenders an issue, tantamount to the general issue of nil debet. The answerconclud.es with a petition of reconvention for ten thousand dollars damages. Upon this issue the cause was tried in the district court, by consent of parties, before a special jury, in March 1826, and a verdict passed against the defendant; who moved the court for a new trial; which motion was overruled by the court, and final judgment rendered on the verdict against the defendant, who thereupon sued out this writ of error. The record presents two bills of exceptions on the part of the defendant, now plaintiff in error.
First bill oí exceptions. Fiske, having first received from the plaintiffs a full and absolute release (which recites that the plaintiffs had dealt with him as the factor and agent of the defendant, and upon the credit and responsibility of the latter alone,) from all liability to them on the contract of sale and as drawer of the bills, was produced as a witness on the part of the plaintiffs to prove that he had purchased the [442]*442tobacco as agent for the defendant. Aft objection on the part of the defendant to the .competency of Fiske, op the ground of interest, was overruled by the court.
Second bill of exceptions. The defendant moved the court to direct the clerk of the court to take down in writing the testimony of the several witnesses examined by the respective parties, in order that the same might appear of record ; such being the practice of the several courts of. the state of Louisiana, according to the constitution and laws thereof, and such being the rule of practice, in the opinion of the' counsel for defendant, to be pursued in this court, accord-? ing to the act of congress of the 26th of May 1824'. But the clerk refused, .&c., and the court refused to order the clerk to write down the same, or to permit the witnesses themselves, the counsel for either of the parties, or any other person, to write down such téstimony; the court expressing the opinion that the court of the United States is not governed by the practice of the courts of the state of Louisiana.
No charge or advice whatever was given or.asked from.the court to the jury on any matter of law or fact in the cáse : nor was any question. whatever raised of the competency or -admissibility of such evidence, other than the specific exception before taken to the competency, of Fiske, on the sole objection of interest; the substance of the facts proved by him being in no manner drawn in'question-before the court.
The record sets out all the documentary evidence; ail of which appears to have been admitted by both parties. This consists' of the protested bills above mtotioned, with an admission upon the record by the defendant, that they hád been regularly returned under protest to the plaintiffs, and that plaintiffs were, at the time the suit was commenced, the holders and owners of the same: and of a series of defendant’s letters to his agent Fiske, from the 26th of- March 1823 to the 10th of August 1825, containing evidence that Fiske, during all that time, was settled at New Orleans, and was the factor and agent of the defendant, there to receive sbipmentsfof cargoes from Boston for the New Orleans market, and to purchase and ship from the latter place to the [443]*443defendant at Boston, cargoes of cotton and tobacco, ,for which he was authorised to draw bills on Parsons at Boston.
Upon the argument in .this court the first bill of exceptions .has been abandoned ás untenable, and in our judgment upon sound reasons.
The second bill of exceptions is that upon which the court is now called upon to deliver its opinion.
By the act of Louisiana of the 28th- of January 1817, section 10, it is provided, that in every, case to be tried by a jury, if one of the parties demands that the facts set forth in the petition and answer should be submitted to the jury to h<ive a special verdict thereon, both parties shall proceed, before the swearing of the jury, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the court, arid signed by the judge; and the jury shall be sworn to decide the question of fact or facts so alleged and denied, and their verdict or opinion thereof shall be unanimously given in open court, &c. and be conclusive between the parties as to the facts in said cause, ás well in the court where the said cause is tried, as on the appeal, and the court shall render judgment; provided, that the jury so sworn shall be prohibited to give any general verdict in the case, but only a special one on the facts submitted to them. This section points out the mode of obtaining a special verdict, in the sense of the common law. The twelfth section then provides, that when any cause shall be submitted to. the court' or to a jury without statements of facts, as is provided in the tenth section of the act, the verbal.evidence shall in all cases where, an appeal lies to the supreme court of the state, if either party requires it, and at the time -when the witnesses shall be examined, be taken down in writing by the clerk of the court, in order to be sent up to the supreme court, tfr serve as a statement of facts' in case óf appeal; and the written evidence produced on the trial shall be filed with the proceedings, &c. &c. The object of this section-is'asserted-to be to enable the appellate court in cases of general verdicts, as well as of submissions to the court, to exercise the power of granting a new trial, and revising the- judgment of the inferior court. [444]*444It seems to be a substitute for the report of the judge who sat at the trial, in the ordinary course of proceedings at the common law.
Of itself, the course of proceeding under the state law of Louisiana could not have any intrinsic force or obligation in the courts of the United States organized in that state : but by the act of congress of the 26th of May 1824, ch.
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[441]*441Mr Justice Story
delivered the opinion of the Court.
This is a writ of error to the district court of the United States for the eastern district of Louisiana.
The facts., disclosed on the record are substantially as follows:
The suifc-'was originally commenced by an attachment, brought in.the parish court of New Orleans, and removed, on the petition of defendant, into the district court of the United States for the eastern district of Louisiana: the. plaintiffs being citizens of Louisiana, and the defendant a citizep of Massachusetts.
' The petition of the plaintiffs set out the ground of . their action to be certain sales of tobacco, made by them to one Eben Fiske, as the factor and agent of the defendant, and for his account, at New Orleans, in June and July 1825; and certain bills of exchange drawn in their favour by Fiske at New Orleans, on the defendant at Boston, at several dates from the 2d to the 20th of July 1825, for the amounts of such sales. The defendant’s answer (filed in the district court after the removal of the cause from the parish court) contains a general traverse of the allegations of the plaintiffs’ petition, and tenders an issue, tantamount to the general issue of nil debet. The answerconclud.es with a petition of reconvention for ten thousand dollars damages. Upon this issue the cause was tried in the district court, by consent of parties, before a special jury, in March 1826, and a verdict passed against the defendant; who moved the court for a new trial; which motion was overruled by the court, and final judgment rendered on the verdict against the defendant, who thereupon sued out this writ of error. The record presents two bills of exceptions on the part of the defendant, now plaintiff in error.
First bill oí exceptions. Fiske, having first received from the plaintiffs a full and absolute release (which recites that the plaintiffs had dealt with him as the factor and agent of the defendant, and upon the credit and responsibility of the latter alone,) from all liability to them on the contract of sale and as drawer of the bills, was produced as a witness on the part of the plaintiffs to prove that he had purchased the [442]*442tobacco as agent for the defendant. Aft objection on the part of the defendant to the .competency of Fiske, op the ground of interest, was overruled by the court.
Second bill of exceptions. The defendant moved the court to direct the clerk of the court to take down in writing the testimony of the several witnesses examined by the respective parties, in order that the same might appear of record ; such being the practice of the several courts of. the state of Louisiana, according to the constitution and laws thereof, and such being the rule of practice, in the opinion of the' counsel for defendant, to be pursued in this court, accord-? ing to the act of congress of the 26th of May 1824'. But the clerk refused, .&c., and the court refused to order the clerk to write down the same, or to permit the witnesses themselves, the counsel for either of the parties, or any other person, to write down such téstimony; the court expressing the opinion that the court of the United States is not governed by the practice of the courts of the state of Louisiana.
No charge or advice whatever was given or.asked from.the court to the jury on any matter of law or fact in the cáse : nor was any question. whatever raised of the competency or -admissibility of such evidence, other than the specific exception before taken to the competency, of Fiske, on the sole objection of interest; the substance of the facts proved by him being in no manner drawn in'question-before the court.
The record sets out all the documentary evidence; ail of which appears to have been admitted by both parties. This consists' of the protested bills above mtotioned, with an admission upon the record by the defendant, that they hád been regularly returned under protest to the plaintiffs, and that plaintiffs were, at the time the suit was commenced, the holders and owners of the same: and of a series of defendant’s letters to his agent Fiske, from the 26th of- March 1823 to the 10th of August 1825, containing evidence that Fiske, during all that time, was settled at New Orleans, and was the factor and agent of the defendant, there to receive sbipmentsfof cargoes from Boston for the New Orleans market, and to purchase and ship from the latter place to the [443]*443defendant at Boston, cargoes of cotton and tobacco, ,for which he was authorised to draw bills on Parsons at Boston.
Upon the argument in .this court the first bill of exceptions .has been abandoned ás untenable, and in our judgment upon sound reasons.
The second bill of exceptions is that upon which the court is now called upon to deliver its opinion.
By the act of Louisiana of the 28th- of January 1817, section 10, it is provided, that in every, case to be tried by a jury, if one of the parties demands that the facts set forth in the petition and answer should be submitted to the jury to h<ive a special verdict thereon, both parties shall proceed, before the swearing of the jury, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the court, arid signed by the judge; and the jury shall be sworn to decide the question of fact or facts so alleged and denied, and their verdict or opinion thereof shall be unanimously given in open court, &c. and be conclusive between the parties as to the facts in said cause, ás well in the court where the said cause is tried, as on the appeal, and the court shall render judgment; provided, that the jury so sworn shall be prohibited to give any general verdict in the case, but only a special one on the facts submitted to them. This section points out the mode of obtaining a special verdict, in the sense of the common law. The twelfth section then provides, that when any cause shall be submitted to. the court' or to a jury without statements of facts, as is provided in the tenth section of the act, the verbal.evidence shall in all cases where, an appeal lies to the supreme court of the state, if either party requires it, and at the time -when the witnesses shall be examined, be taken down in writing by the clerk of the court, in order to be sent up to the supreme court, tfr serve as a statement of facts' in case óf appeal; and the written evidence produced on the trial shall be filed with the proceedings, &c. &c. The object of this section-is'asserted-to be to enable the appellate court in cases of general verdicts, as well as of submissions to the court, to exercise the power of granting a new trial, and revising the- judgment of the inferior court. [444]*444It seems to be a substitute for the report of the judge who sat at the trial, in the ordinary course of proceedings at the common law.
Of itself, the course of proceeding under the state law of Louisiana could not have any intrinsic force or obligation in the courts of the United States organized in that state : but by the act of congress of the 26th of May 1824, ch. 181, it is 'provided that the mode of proceeding in civil causes in the courts of the United States that now are or hereafter may be established in the state of Louisiana, shall, be conformable to the laws directing the mode of practice in the district courts' of the said states; provided, that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make by rule such other provisions as may be necessary to adapt the laws of procedure to the organization of such court of tin. United States, and to avoid any discrepancy, if any such should exist, between such state laws and the laws’of the United States.
This proviso demonstrates, that it was not the intention of congress to give an absolute and imperative force to the. modes of proceeding in civil causes in Louisiana in the court-of the United States; for it authorises the, judge to modify them, so as to adapt them to the organization of his oWn court. It further demonstrates, that no absolute repeal was intended of the antecedent modes of proceeding authorised in the courts under the former acts of congressj for it leaves the judge at liberty to make rules by which to avoid any discrepancy between the state laws and the laws of the United States; and wfoat is material to be observed, there' is no clause in the act pointing in the slightest manner to any intentional change of the mode in which the supreme court of the United States is to exercise its appellate power in causes tried by jury, and coming from the courts of the United States in Louisiana ; or giving it authority to revise the judgments thereof in any matters of fact, beyond what the existing*laws of the United States authorised.
Whether the district court in Louisiana had. adopted any rules on this subject, so as to modify or suspend, the opera[445]*445tion of the Louisiana state practice, in relation to the taking down the verbal testimony of witnesses, does not appear upon this récord. The coürt expressed an opinion, “ that the court of the United States is not governed by the practice of the courts of the state of Louisianaand this would be correct, if, in the particular complained of, the court had adopted any rule superseding that practice. _ If no such rule had been adopted, the act of congress made the practice of the state the rule for the court of the United States. Unless, then, such a special rule existed, the court was bound to follow the general enactment of congress on the subject, and pursue the state practice.
But, admitting that the decision of the court below was wrong, and that the j>arty was entitled to have his testimony taken down in the manner prayed for; still it is important to consider, whether this is such an error as can be redressed by this court Upon a writ of error.
Generally speaking, matters of practice in inferior courts, do not constitute subjects upon which error can be assigned in the appellate court. And unless it shall appear that this court, if the omitted evidence had been before it on the re-, cord, would have been entitled to review that evidence, and might, if upon such review it had deemed the conclusion of the jury erroneous, have reversed the judgment and directed a new trial ift the court below there is no ground upon which-the present writ of error can be sustained.
It was competent for the original defendant to have raised any points of law growing out of the evidence at the trial, by a proper application to the court; and to have brought any error óf the court in its instruction or refusal, by a bill of exceptions, before this court for revision. Nothing of this kind was done or proposed. No bill of exceptions was tendered to the court,* and no points of law are brought under review. The whole object, therefore, of the applica-. tion to recofd the evidence, so far at least as this court can take cognizance of it, was to present the evidence here in order to establish the error of the verdict in matters of fact. Could such matters be properly cognizable in this court upon the present writ of error 9 It is very certain that they [446]*446could not upon any suit and proceedings in any court of.the United States, sitting in any other state in the union than Louisiana.
The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to suclr a trial is, it is believed, incorporated into, and secured in every state constitution in the union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cas.es. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; and which received an assent of the people so general, as to establish its importance as a fundamental guarantee of the rights and liberties of the people. This amendment declares, that “ in suits .at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law.” At this time there were no states in the union, the basis of whose jurisprudence was not essentially that of the common law in its widest-meaning; and probably no states were contebriplated, in which it would not.exist. The-.phrase “common law,” found in this clause, is used in contradistinction to equity, .and. admiralty, and maritime jurisprudence. The constitution had declared, in the third article, “ that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,” &c. and to all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only jn extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at com[447]*447mon law, the natural conclusion is, that this distinction was present to the minds, of the framers of the amendment. By common law, they meant what the constitution denominated' in the third article “ law;” not nierely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit. Probably there were few, if any, states in the union, in which some new legal remedies differing from the old common law forms were not in use;buf in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment,-might be cited as .'examples variously adopted and modified. In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And congress seems to have acted with reference to this .exposition in the judiciary act of 1789, ch. 20, (which w'as contemporaneous with the proposal of this amendment) ; for in the ninth section it is provided, that “ the trial of issues in fact in the district courts in all causes, except civil causes of admiralty, and maritime jurisdiction, shall be by jury;” and in the twelfth section it is provided, that.“ the trial of issues in fact in the. circuit courts shall in. all suits, except these of equity; and of admiralty and'maritime jurisdiction, be by jury;” and again, in the thirteenth section, it is provided, that “ the trial of issues, in fact in the supreme court in all actions at law-against citizens of the United States, shall be by jury.”
But the other clause of the amendment is still more important; and we read it as a substantial and independent-clause.- “ No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules oUthe common law.” This is a prohibition to the [448]*448courts of the United States to, re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error-of law which intervened in the proceedings. The judiciary act of 1789, ch. 20, sec. 17, has giverf to all the courts of the United States “ power to grant new trials in cases where there has -been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.” And the appellate jurisdiction has also been amply given by the same act (sec. 22,24) to this court, to redress errors of law; and for such errors to award a new trial, in suits at law which have been tried by a jury.
Was it.the intention of congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a.new trial by a re-examinatioii of the facts tried by the jury *? to enable it, after trial by jury,' to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts sitting in all the other states in the union? We think not. No general words, purporting-only to regulate the practice of a particular court, to conform its modes of proceeding to those prescribed, by the state to its own courts, ought, in our judgment, to receive an interpretation which would create so .important' an alteration in the laws of .the United States, securing the trial by jury. Especially ought it not to receive such an interpretation, when there,is a power given to the inferior court itself to prevent any discrepancy between the state laws and the laws of the United States; so that it would be left to its sole discretion to supersede, or to give conclusive effect in' the appellate court to the verdict- of the jury.
If, indeed, the construction contended for at the bar were to be given to the act of congress, we entertain the most serious doubts whether it would not be unconstitutional. No court ought, unless the terms of an act rendered it unavoidable,' to give a construction to it which should involve a vio[449]*449Iation, however unintentional, of the constitution. The4erms of the present, act may well be satisfied by limiting its operation to moues of practice and proceeding in the court belowy without changing the effect or conclusiveness of'the verdict of the.jury upon the facts litigated at the trial. Nor is there any inconvenience from this construction; for the party has still his remedy, by bill of exceptions, to bring the facts in review before the appellate court, so far as those facts bear upon any question of law arising at the trial; and if there be any mistake of the facts, the court below is competent to redress it, by granting a new trial.
Our opinion being that, if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial; the refusal to allow that evidence to be entered on the record is. not matter of error, for which the judgment can be reversed. The judgment is therefore affirmed, with six per cent damages and costs.