Where the bill of exceptions purported to have been taken at
April term, 1848, but the record showed that, at that time, no suit
between the parties was pending and that the trial took place in
April, 1849, the date of 1848 must be considered as a clerical
error. The certificate from the circuit court showed that the bill
of exceptions was regularly allowed upon the trial, and this must
be conclusive upon this Court.
Where the suit was upon a postmaster's bond and the district
attorney offered to read in evidence an authentic copy thereof,
which the court refused to receive, this refusal was erroneous.
Although the presumption of law is in favor of the correctness
of the court below where no reasons appear, yet, in this case, the
record itself shows the error. If there was any fact which made the
copy of the bond inadmissible, it ought to have been shown by the
defendants and set forth in the exception.
The facts are set forth in the opinion of the Court.
Page 53 U. S. 251
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This action was brought against the defendants in error as
sureties in the official bond of William McQueen, who was appointed
postmaster at New Orleans in 1840.
The proceeding was by petition, according to the practice in
Louisiana, and a copy of the bond was set forth in the petition and
also annexed to and filed with it, and the United States alleged
that McQueen had received, as postmaster, twenty thousand and sixty
dollars and ninety-two cents which he had neglected and refused to
pay over.
The defendants, in their answers, took three grounds of
defense:
1. They admitted their several signatures to the bond set forth
in the petition, but denied that it had ever been delivered by them
or accepted by the Postmaster General.
2. That there had been a former recovery against them for the
same cause of action.
3. That the suit was barred by limitations, not having been
instituted against the sureties within two years after the default
of the postmaster.
At the trial, the jury found a verdict for the defendant, and
judgment was entered accordingly, and the United States have
brought this writ of error upon the judgment.
It appears by the record duly certified to this Court, that the
following exception was taken:
"United States"
"v. No. 1727"
"Wilkinson
et al."
Page 53 U. S. 252
"In the Circuit Court of the United States, for the Fifth
Circuit sitting for the Eastern District of New Orleans"
"Present, Hon. T. H. McCaleb, Judge of the district court,
presiding alone."
"
April term, 1848"
"Be it remembered that at the April term of the circuit court
aforesaid, in the year 1848, on Tuesday, the 8th day of April,
1848, on the trial of the above-named cause, the attorney of the
United States offered in behalf of the said United States to [be]
read in evidence to the jury a certain instrument, being a bond
annexed to the petition or information in this cause, being an
authentic copy [of] a bond signed by William McQueen as principal,
and the parties herein defendant as sureties, for the faithful
discharge of the duties of the office of postmaster at New Orleans,
dated on the eighth day of June, in the year one thousand eight
hundred and forty; to the reading in evidence of which bond the
counsel of defendants objected, and the court sustained the
objection, and refused to allow the document to be read."
"Whereupon the attorney of the United States excepted to the
ruling of the court, and tenders this as his bill of exceptions,
praying that the same may be signed by the court, and made a part
of this record."
"THEO. H. McCALEB [SEAL]"
"
U.S. Judge"
This exception, it will be observed, states that it was taken on
the 8th day of April, 1848, and the record shows that the suit was
not instituted until the 11th of July in that year, and that the
trial took place on the 7th and 8th of May, 1849, and that the
verdict was rendered on the day last mentioned.
It is insisted on behalf of the defendants that as this
exception is stated to have been taken on 8 April, 1848, more than
a year before the trial, it cannot be regarded by this Court as an
exception legally taken, nor noticed in its judgment. And further
that if it be considered as an exception regularly taken and
certified, yet the opinion of the court rejecting the testimony was
correct.
The exception is certainly very loosely framed, and the date
above mentioned cannot be reconciled with the rest of the record.
It is evidently a clerical mistake, arising most probably from the
pressure and hurry of business, which is sometimes unavoidable in a
court of original jurisdiction. For the titling at the head of the
exception states it to be taken in No. 1727, which is the number by
which this suit appears to have been marked in the circuit court
throughout the proceedings, and in the body of the exception it is
said to be offered at the trial.
Page 53 U. S. 253
There is nothing in the record from which it can be inferred
that a suit was pending between the same parties on 8 April, 1848.
And this exception is regularly certified by the circuit court as a
part of the proceedings in this case and as one taken at the trial.
This certificate from the circuit court is conclusive upon this
Court, and the exception must be regarded as duly taken and
regularly brought up by the writ of error.
With respect to the opinion excepted to, we can see no ground
for rejecting the testimony. The exception in substance states that
the district attorney offered to read in evidence a certain
instrument, annexed to the petition, being an authentic copy of a
bond signed by the defendants as sureties for McQueen. It is
admitted by the answers that the defendants had signed the original
bond of which this is a copy, and moreover the copy offered is said
to be authentic. The possession of the original bond by the proper
officers of the United States was
prima facie evidence
that it had been delivered and accepted. The bond was a necessary
part of the evidence in behalf of the United States, and as the
copy was duly authenticated, according to the act of Congress, we
are at a loss to understand upon what ground it could have been
rejected.
It is said that there might have been objections which do not
appear in the exception, and that every presumption is to be made
in favor of the judgment of the inferior court, and that it is to
be presumed right until the contrary appears. This is true. But the
contrary does appear in the present case. If, indeed, the exception
had merely stated that the plaintiff offered a certain paper
without describing it or without showing its application to the
matter in controversy, and the court had rejected it without
stating the grounds of its decision, undoubtedly the judgment would
be presumed to be correct.
But here, the paper is shown by the statement in the exception
to be legally admissible. The error therefore is apparent, and no
presumption can be made in favor of a judgment where the error is
apparent on the record.
If there was any fact which, notwithstanding the authentication
of the copy, made it inadmissible, it ought to have been shown by
the defendants and set forth in the exception. And where no such
fact appears, it must be presumed not to exist. A contrary rule
would make the right to except of no value to the party and would
put an end to the revisory power of the appellate court whenever
the inferior tribunal desired to exclude it --
"De non
apparentibus et de non existentibus eadem est ratio," is an
old and well established maxim in legal proceedings, and is founded
on principles of justice as well as of law. And for error
Page 53 U. S. 254
in rejecting the testimony which upon the facts in the exception
ought to have been received, the judgment of the circuit court must
be
Reversed.
Order
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 reversed, and that this cause be and the same is hereby
remanded to the said circuit court with directions to award a
venire facias de novo.