United States v. Cook

25 F. Cas. 605

Opinion

STORY, Circuit Justice.

The only error now assigned at the bar is, that on the issue of nul tiel record the court below ought to have rendered a judgment, that the. plaintiffs had perfected the record. There are two objections to this court’s entertaining any question on this subject, which are equally fatal to the plaintiffs. In the first place, the judgment of the court below is that the plaintiffs failed to produce the record; and as no record was there produced, and none is contained in the transcript before this court, it is impossible for me to perceive that there was any error in the judgment in this point If there had been a record produced, which the district court judicially held not to be the record pleaded, the error if any, in its judgment, could not be made apparent here, but by showing it on the record, in a bill of exceptions, or in some other regular manner. In the next place, the issue of nul tiel record was an issue of fact, although it was triable by the court; and the judicial act of 1789 (chapter 20, § 22), declares, that there shall be no reversal upon a writ of error upon the judgment of the district court for any error of fact. Upon both grounds, therefore, the judgment, must be affirmed.