The distinction between writs of error and appeals cannot be
overthrown by an agreement of counsel in the court below that all
the evidence in the cause shall be introduced and considered as a
statement of facts.
This case was brought before the Court at the last term on a
motion to dismiss, and is reported in 42 U. S. 1
The position of the case is sufficiently set forth in that
report. It now came up on a final hearing.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The action was commenced in the circuit court to recover
possession of certain tracts of land specified in the petition, and
for damages, &c.
The defendant set up a title to the premises and pleaded
prescription, under the various laws of Louisiana.
Page 43 U. S. 393
This cause was before this Court at January term, 1833, on a
writ of error, and was reversed and sent down for further
proceedings. In the court below, the death of the plaintiff was
suggested, and a supplemental petition was filed making his heirs
and representatives parties to the suit. The pleadings were amended
and a jury being called and sworn, evidence was heard by them, and
certain exceptions taken to its admissibility by the defendant. But
afterwards, by consent of parties, the jury, before it rendered its
verdict, was discharged. The cause was then submitted to the court
under an agreement between the counsel that
"the documents filed in the cause, the plans, and written
depositions, contain all evidence and exhibits on which this cause
was tried by the court; the whole was read, subject to all legal
exceptions except as to the form of taking the verbal testimony,
and all other objection to the testimony, accounts, and plans, are
to be argued as though the bill of exceptions were drawn out in
form, signed and filed. The agreement is made for a statement of
the facts in the case."
A large mass of evidence was received from both parties,
consisting of concessions and grants under the Spanish government,
intermediate conveyances, documents showing proceedings in regard
to the title under the laws of the United States, and parol
testimony involving a great variety of facts, on a consideration of
all of which a judgment was rendered by the circuit court for the
From the record it is impossible for this Court to say on what
grounds of law or fact the circuit court gave judgment. No point as
to the admissibility or effect of the evidence was raised on the
record by the plaintiffs in error in the circuit court. It seems to
have been supposed that the above agreement of the counsel that the
evidence in the cause should be considered as a statement of facts,
subject to all legal objections, though no objections were stated,
was sufficient ground for a writ of error on which a revision of
the legal questions in the case might be made in this Court.
In this view the writ of error must be considered as bringing
all the facts before this Court as they stood before the circuit
court. And this Court, exercising a revisory jurisdiction would be
required to try the cause on its merits. This is never done on a
writ of error, which issues according to the course of the common
law. Under the Louisiana system, a different practice may prevail.
But we had supposed that since the decisions of the case of
3 Pet. 445, there could be no
misapprehension in regard to the
Page 43 U. S. 394
proceedings of this Court on a writ of error. In that case, the
"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 of 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."
And the court went on to consider the effect of the act of 1824
in regard to the Louisiana practice and hold that that law does not
change the exercise of the appellate power of this Court.
The case referred to had been tried by a jury, but in regard to
the revisory power of this Court on a writ of error there is no
material difference between that case and the one under
consideration. In both cases the facts were upon the record, and
this Court was called upon to determine the questions of law
arising upon the facts.
In the case of Parsons,
the Court said "that if the
evidence were before it, it would not be competent for the court to
reverse the judgment for any error in the verdict of the jury." And
it said the refusal of the court to direct the evidence to be
entered on the record, as required under the Louisiana practice,
was not matter of error.
Whatever opinion, therefore, may have been entertained in regard
to the effect of the act of 1824 on the practice of the Circuit
Court of the United States in Louisiana before the above decision,
after it, there would seem to be no ground for doubt. The practice
of the Circuit Court in Louisiana since the above case was decided
has conformed to the rule laid down in that case. But in the
present cause there is no statement of agreed facts. If the case be
revised on a writ of error, the evidence on both sides must be
considered and weighed by the court as a jury would consider and
weigh it, and after adjusting the balance, the principles of law,
not as they were presented to the circuit court but as they may
arise on the evidence, must be determined. This is not the province
of a court of error, but of a court of chancery on an appeal from
the decree of an inferior court. On such a review, not only the
competency of the evidence must be decided, but also the
credibility of the witnesses.
The case under consideration was a proceeding at law, and, as
the legal points have not been raised by a bill of exceptions, in
the circuit court, it is not a case for revision in this Court.
A judgment of
Page 43 U. S.
affirmance is therefore entered, at the costs of the
plaintiff in error.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed with costs.