1. No error is committed in refusing a prayer for instructions
consisting of a series of propositions, presented as an entirety,
if any of them should not be given to the jury.
2. When error is assigned upon the instructions given and those
refused, the bill of exceptions must set forth so much of the
evidence as tends to prove the facts out of which the question is
raised to which the instructions apply.
3. Where, therefore, the bill of exceptions embodies only the
instructions given and those refused, this Court will not reverse
ERROR to the Circuit Court of the United States for the Eastern
District of Arkansas.
The facts are sufficiently stated in the opinion of the
MR. JUSTICE MILLER delivered the opinion of the Court.
The errors assigned in this case relate solely to prayers for
instructions refused by the court and to exceptions to its charge.
The bill of exceptions shows a paper signed by the defendants'
counsel in which the court is asked to affirm a series "of
propositions of law as governing the case," seven in number. They
were presented as a whole, refused as a whole, and excepted to in
the same manner. If any one of them was rightfully rejected, no
error was committed, because it was not the duty of the court to do
any thing more than pass upon the prayer as an entirety. Beaver
v. Taylor, 93 U. S. 46
Transportation Line v. Hope, 95 U. S.
. We shall presently see why there is no error in the
rejection of this prayer.
Page 101 U. S. 150
The charge of the court in full is embodied in the record, and
to this the defendant took two exceptions. They are thus
"And the defendant excepted at the time said charge was given by
the court to the following parts thereof, to-wit, to so much of
said charge as states the law to be that if Colonel Worthington,
the owner of the plaintiff as a slave, took the plaintiff to
Oberlin, in the State of Ohio, and there placed her in school to be
educated, the Constitution and laws of Ohio immediately dissolved
the relation of master and slave previously existing between
Colonel Worthington and the plaintiff, and that the plaintiff
thereby became a free woman, and could never thereafter lawfully be
claimed or held by Colonel Worthington as his slave in virtue of
his previous ownership of her, and that the subsequent return of
the plaintiff from the State of Ohio to the residence of the
intestate in this State did not affect her liberty or rights as a
free woman which she had acquired by the voluntary action of the
intestate and by the operation of the Constitution and laws of the
State of Ohio."
"And defendants also at the time excepted to the following
clause of said instructions, to-wit,"
" And in considering the question of what would be reasonable
and just compensation to the plaintiff for her services, you are at
liberty to take into consideration any evidence tending to
establish the special agreement heretofore referred to, and if you
find such special agreement a contract was made, that is, that the
intestate, for the purpose of inducing the plaintiff to remain with
him and render the services alleged to have been rendered, agreed
to convey or devise to the plaintiff in payment for such services
specified portions or parcels of his estate, and that the plaintiff
did remain with the intestate and perform the required services
until the death of the intestate, then, as throwing light on the
transactions between the parties, and as tending to show the value
the parties themselves placed upon the services of the plaintiff,
you are at liberty to take into consideration the value as
disclosed by the evidence of such specific parcels of real estate
which you may find the intestate agreed to convey or devise to
plaintiff for such services, and considering the special contract
(if you find it proven) for this purpose only, it rests
Page 101 U. S. 151
with you under your oaths and judgments, considering all the
facts and circumstances in the case disclosed by the evidence, to
say what would be a fair, reasonable, and just compensation to the
plaintiff for her services, but in no event can you allow the
plaintiff a greater sum than the value of the specific property
which plaintiff claims was to be conveyed or devised to her
There is in no part of this bill of exceptions any statement of
the evidence. There is no statement that any evidence was offered
or that any was objected to. With the exception of the reference to
it in the charge of the court, there is nothing to show what was
proved, or what any of the evidence tended to prove. The prayers
for instruction therefore may have been hypothetical and wholly
unwarranted by any testimony before the jury.
The exceptions to the charge of the court just recited are in
the same condition. The principal one, to which the argument of the
plaintiffs in error is chiefly directed, is that the court erred in
telling the jury that
"if Colonel Worthington, the owner of the plaintiff as a slave,
took her to Oberlin, in the State of Ohio and placed her in school
to be educated, the Constitution and laws of Ohio immediately
dissolved the relation of master and slave previously existing
between Colonel Worthington and the plaintiff, and that the
plaintiff thereby became a free woman, . . . and her subsequent
return to the residence of Worthington in Arkansas did not affect
her rights to freedom."
The plaintiff nowhere states in her petition that she was ever
the slave of Worthington, though she alleges that she was his
As none of the evidence given or offered on the trial is set out
in the bill of exceptions, we cannot presume against the verdict
that plaintiff ever was the slave of Worthington.
The defendant in error raises this objection, and the very
learned counsel of the plaintiffs in error, who did not try the
case below, admits this objection to be fatal to his effort to
reverse the judgment unless we can hold, from language used by the
judge in his charge to the jury, that the fact was proved.
Page 101 U. S. 152
It is certainly true that the judge does say, in that part of
his charge which relates to that subject, that the former slavery
was a conceded fact in the case. His language, in addressing the
jury, while discussing the proposition of the defendants' counsel,
is as follows:
"Among the conceded facts in the case are these: that the mother
of the plaintiff was a slave, and the property of Colonel
Worthington at the date of plaintiff's birth, and that the
plaintiff is the natural daughter of Colonel Worthington. The
mother of the plaintiff having been a slave at the date of the
plaintiff's birth, it results that she was born a slave, and at her
birth was the property of Colonel Worthington, her natural
But we do not look to the charge of the judge for the state of
the evidence on which that very charge is to be held right or
wrong. The judge cannot be permitted to cure the error of his law
propositions by assuming as facts what may not have been proved.
This very part of the charge was excepted to by the plaintiffs in
error on the ground that its law was erroneous. If the verdict had
been for them, the plaintiff below might have excepted, because the
facts thus stated were not conceded. As we understand the
principles on which judgments here are reviewed by writ of error,
that error must appear by some ruling on the pleadings, or on a
state of facts presented to this Court. Those facts, apart from the
pleadings, can only be shown here by a special verdict, an agreed
statement duly signed and submitted to the court below, or by bill
of exceptions. When in the latter, complaint is made of the
instructions of the court given or refused, it must be accompanied
by a distinct statement of testimony given or offered which raises
the question to which the instructions apply.
This is not to be sought for, however, in the comments of the
court to the jury on the testimony.
The proof of the facts which make the charge erroneous must be
distinctly set forth or it must appear that evidence was given
tending to prove them.
It is not sufficient to show that the judge assumed this in his
charge to the jury, it must be certified to this court distinctly
under his hand.
Page 101 U. S. 153
It would be very dangerous to permit verdicts fairly rendered to
be reversed in this Court on the recitation of facts supposed to be
proved, found only in a long comment of the judge on the
This would be to usurp the function of the jury, and the verdict
might be set aside in this Court because the court below understood
the evidence in one way and the jury in another or, as in the
present case, because the judge was of opinion that a fact was
proved which the judge refused to believe.
When, therefore, the question is on the soundness of the judge's
law as given to the jury, he must, on his due responsibility,
certify to the appellate court, and not to the jury, the evidence
on which he pronounced the law.
We are not furnished by counsel with any case precisely in
point. Probably no bill of exceptions was ever certified to an
appellate court before which contained nothing but the charge and
the objections made to it.