United States v. Jarvis

26 F. Cas. 593, 3 Woodb. & M. 217

• Court: U.S. Circuit Court for the District of Maine
• Decided: October 15, 1847
• Status: Published

Opinion

WOODBURY, Circuit Justice.

The objection to the consideration of the question on the merits in this case, whether the ruling of the judge was correct or not, must, I fear, prevail, under the state in which we find this record. The report at the end of the record made and signed by the judge, is not in the usual form of a bill of exceptions, elsewhere; though it is understood to have been at times, for some years, employed in this district. But the practice here has not been uniform, as may be seen in the original record in Trafton v. U. S. [Case No. 14,135]. The form there as in England, is, after stating what was ruled by the judge, to say, this was excepted to by one of the parties; and then for the judge to affix his seal, as well as signature, in order to verify the fact that the exception was made and is truly set out. See St. Westm. II. which is 13 Edw. Pl., requiring it; [Jones v. Insurance Co. of North America] 4 Dall. [4 U. S.] 249; 1 Bac. Abr. “Bill of Exceptions,” 517; Steph. Pl. 111; 5 Term R. 125; 5 East, 49; 1 Bos. & P., 32; Lil. Ent. 275, 323; 3 Burrows, 1692; Davis v. Wilson. 2 Har. & J. 345. In tlie Massachusetts district, if not in all others in this circuit, the form of a bill of exceptions in use, is substantially as in England. It is signed and sealed separately, and in its body sets out that the “counsel at the trial excepted and prayed this, his bill of exceptions, to be signed by the said judge, which being found to be true, the said judge hath, at the request of the said counsel,” put his seal, &c. U. S. v. Kimball [Case No. 15,530], May term, 1844. Nor is the form here that which is in use when cases are carried to the supreme court of the United States. [Walton v. U. S.] 9 Wheat. [22 U. S.] 651.

The present seems to be rather a form of reporting a case by the judge who tries it, in order to bring it for consideration more deliberately afterwards, either before himself or a full court. No act of congress has prescribed or permitted any new form for a bill of exceptions; and as the constitution in its seventh amendment seems expressly to require, in a case like this, that no fact shall be “otherwise re-examined in any court of the United States than according to the rules of the common lay,” so it is reasonably to be concluded, that no point of law should be, unless at least some act of congress justifies it. The judiciary act (section 22) permits a re-examination by writ of error. 1 Stat. 84. But what can or cannot be reached and considered under a writ of error is left to be settled as at common law. Conk. Prac. 68; U. S. v. Wonson [Case No. 16,750]; McLellan v. U. S. [Id. 8,895].

I do not think it material, however, in what part of the record the exceptions are set out, or the signature or seal is affixed, if they only appear, and so appear as to cover and authenticate the exceptions. Taylor v. Willans, 2 Barn. & Adol. 846. And if no seal be affixed, perhaps it can be cured by leave to put it to the exceptions afterwards; and the exceptions themselves, if made at the trial, may be completed afterwards on leave. [Walton v. U. S.] 9 Wheat. [22 U. S.] 651; U. S. v. Gibert [Case No. 15,204]; 6 Wend. 268; 1 J. J. Marsh. 58; 9 Conn. 545; 5 N. H. 336; 4 Mass. 507; 2 Dowl. (N. S.) 335. But unless these’ are done before judgment, and appear in the record itself before the writ of error is sued out, it will be difficult on principle to sustain the writ.

The liberality which prevails in allowing amendments on writs of error, is rather in these writs themselves than in the proceedings they are brought to reverse, though at times amendments in them also are allowed. Conk. Prac. 441; [Mossman v. Higginson] 4 Dall. [4 U. S.] 12; [Blackwell v. Patten] 7 Cranch [11 U. S.] 277. Thus, in some states amendments are allowed in bills of exceptions so as to conform to the truth. 7 Cow. 102; 5 N. H. 336; 11 Adol. & E. 1000; 3 Perry & D. 539. But here, though no seal is affixed to the signature at the end of his report concerning what took place, I think that omission can be considered as cured by his signature and seal in another part of the record to a statement that he sends “the record and process in the suit aforesaid, with all things concerning them.” This is broad enough to cover the report, and without any unusual stretch in construction, may be considered as a verification of the truth of that report by his seal no less than by his signature. But there is a difficulty not cured by this. It is the omission in the report itself to state that-his ruling at the trial was then and there excepted to by the present plaintiffs in error. The exceptions must, in fact, be made then. 6 Johns. 279; 9 Johns. 345; 5 N. H. 336; 1 T. B. Mon. 216; Ex parte Bradstreet, 4 Pet. [29 U. S.] 102; 5 Watts, 69, 677 ; 6 J. J. Marsh. 247. And it must so appear in the record. State v. Lord, 5 N. H. 336. This is deemed vital in order to make the proper bill of exceptions. Brown v. Clark, 4 How. [45 U. S.] 15; [Ex parte Bradstreet] 4 Pet. [29 U. S.] 102. The very expression itself, being a “bill of exceptions,” shows that it must contain exceptions. And unless set out in writing as exceptions, it cannot be helped by parol evidence, showing that they were so intended, or by a subsequent bill signed. 3 A. K. Marsh. 360; Spaulding v. Alford, 1 Pick. 37; Pendleton v. U. S. [Case No. 10,924]; 5 Vt. 73, 218; 7 Vt. 223.

It is not enough for it to appear that objections were made, but they must be enumerated specially, and such only can be considered as exceptions. Dunlop v. Munroe, 7 Cranch [11 U. S.] 270. They must not only have been made, but not waived. They must be persisted in as exceptions. [Walton v. U. S.] 9 Wheat. [22 U. S.] 657; 11 Price, 110; 1 Bing. 17. The form in England is: “Wherefore, the said counsel for, and on behalf of the said plaintiff, did allege their exception aforesaid, to the opinion of the said justice, and require,” &c. Lil. Ent. 252. It is believed to be thus defective in substance as well as in form, when closely analyzed. Here it does not appear in the report and record that objections were made at all, much less that they were persisted in with a view to obtain on them the opinion of a higher court through a bill of exceptions and writ of error. And though'this court, from all the circumstances of the case and the ruling, might be satisfied that exceptions were made and persisted in, yet this is not in law sufficient, unless, as already shown, the court finds the exceptions expressly stated in the record to have been made and allowed. The exceptions, also, are the act of a party, and not of a judge; and they must, therefore, not only appear, but appear to have been made by one of the parties. Thus in Lilly, 275, “the same N. D. required of the same justices” to sign and seal the exceptions. Bratton v. Mitchell, 5 Watts, 69.

Though satisfied in this instance, that the course pursued did not originate with the present judge or attorney in tliis district; and that holding it to be invalid will conflict with long - usages in this district, and may endanger some other writs of error; yet I do not feel justified in sustaining it, when the respondent does not choose to waive objection to the defects. Such a waiver had doubtless occurred heretofore, in other cases, by not discovering it, or not wishing to rely on it when discovered. It may happen hereafter. But when it does not, as here, the public or individuals are not likely to suffer much “by the decision of an intelligent district judge, standing as evidence of what the law of the ease is, and which is the only consequence of not sustaining the writ. The omission here is so great, neither stating who wished the report of his charge to be drawn up, nor why; or that any exception, whatever, was taken to it at the trial; that it does not seem possible to sustain it under the act of congress, or any common law analogy.

This conclusion precludes any inquiry of mine into the merits of the ruling, however a decision on them by this court may be desirable to the government. It would be trav-elling out of the record, and also in a way to prejudge some similar question that may hereafter arise between them or other parties, in such way as to require and justify a final decision, and that by other judges, in this or other circuits; and whose views it would not be decorous for me to forestall, when the point is not directly before me. The writ of error must, therefore, be dismissed.