1. No "exception" lies to overruling a motion for anew trial,
nor for entering judgment.
2. The entries on a judge's minutes, the memoranda of an
exception taken, are not themselves bills of exception, but are
only evidences of the parties' right seasonably to demand a bill of
exceptions -- memoranda, in fact, for preserving the rights of the
party in case the verdict should be against him and he should
desire to have the case reviewed in an appellate tribunal. No
exceptions not reduced to writing and sealed by the judge is a bill
of exceptions, properly speaking, and within the rules and practice
of the federal courts. The seal, however, being to the
of exceptions, and not to each particular exception
contained in it, it is sufficient if the bill be sealed, as is the
practice in the first and second circuits, at its close only.
3. Where an objection is to the ruling of the court, it is
indispensable that the ruling should be stated and that it should
also be alleged that the party then and there excepted.
4. This Court cannot give judgment as on an agreed statement of
facts or case stated except where facts, and facts only, are
stated. If there be question as to the competency or effect of
evidence or any rulings of the court below upon evidence to be
examined, the Court cannot entertain the case as an agreed
statement. Burr v. Des Moines Co., ante,
U. S. 99
5. Where a case is brought here upon a writ of error issued
under the 22d section of the Judiciary Act and there is neither
bill of exceptions, agreed statement, nor special verdict brought
up, the judgment, generally speaking, will be affirmed, as it was
in this case. Burr v. Des Moines Co., ante,
68 U. S. 99
the case was "dismissed" simply, was special in its
Page 68 U. S. 593
The suit was ejectment, brought by a nominal plaintiff, as at
common law, against the casual ejector, to recover possession of a
tract of land in the State of Indiana. Process was duly served upon
the persons in possession, and the corporation defendants were
admitted to defend the suit, and, as such defendants, filed the
usual consent rule, confessing lease, entry and ouster, and pleaded
the general issue. The parties waived a jury, and the
and law of the case under the issue joined in the
pleadings were by the agreement of counsel submitted to the
The court found that the title of the defendants
was the better title and that they were entitled to judgment. The
plaintiffs then moved for a new trial,
and the parties
were heard upon that motion, but the court after the hearing
overruled the motion and entered judgment for the defendants.
Whereupon, the plaintiff sued this writ of error and sought to
reverse the action of the court upon the ground that the finding
and judgment were erroneous.
The premises in controversy had belonged to one Webb, and both
parties attempted to show title from that source. The lessors of
the plaintiff claimed title by virtue of a deed from the marshal of
the United States, given in pursuance of a sale of the premises
made by that officer under an execution issued from the circuit
court of the United States. The record showed that at the November
Term 1838, of that court, held at Indianapolis, within and for the
District of Indiana, they recovered judgment against the owner of
the premises, and one Shoemaker, for the sum of $1,125.31 damages,
and costs of suit taxed at $36.19. Execution was issued upon the
judgment on the 17th December following, and on the 20th of May,
1839, the marshal made his return upon the same. The return showed
that the sale was made at Indianapolis, in the County of Marion,
and not in the county where the land lay, and that the lessors of
the plaintiff were the purchasers at the sale for the consideration
of $60, for the several tracts constituting the premises described
in the declaration.
Page 68 U. S. 594
The defendants contended that the sale was void because not made
in the county where the land was situated, and they claimed title
under a certain trust deed previously executed by the parties
before named as the judgment debtors of the lessors of the
plaintiff. The trust deed was dated on the 5th November, 1838, and
the title of the defendants was derived under a conveyance made by
the trustee in the execution of the trusts therein declared. The
grantors, by the terms of the deed, conveyed to the trustee, one
Jenners, and to his executors or administrators, as successors, all
the real estate, goods, chattels, judgments, notes, securities for
money, open accounts, and other choses in action, bank stock and
insurance stock, as more particularly set forth in a schedule
inserted in the instrument. The instrument itself recited that the
grant, bargain, sale, conveyance, transfer, and assessment were to
be subject to certain specified trusts, and be accompanied with
certain described powers. A commission to the trustee and the
expenses of executing the trust were first to be paid in all cases;
next, a certain promissory note due to the Branch Bank of Indiana;
then certain judgments already recovered against the grantors; then
all other and future judgments recovered against them, and finally,
all their other debts.
The plaintiff contended that the trust deed was void, on account
of the extraordinary powers conferred upon the trustee, and also on
account of some unusual reservations contained therein in favor of
the grantors. Evidence was introduced on both sides, and the
parties were heard upon the merits and also upon a motion for new
trial, before the judgment was finally entered.
The record stated that the plaintiff filed two bills of
exceptions to the rulings of the court.
The first bill of exceptions stated that the court held:
1. That the proceedings under which the lessors of the plaintiff
made title were all correct, that the sale of the marshal was made
at the usual place of making sales, and that it was regular and
sufficient to convey the title of the judgment debtors.
Page 68 U. S. 595
2. That the trust deed was also valid and effectual in law to
convey the premises, and that it was the paramount and better
Neither party excepted to anyone of these rulings of the
but the bill of exceptions further stated in effect,
that after the decision was announced, and before the entry of the
judgment, the plaintiff moved the court to grant him a new
trial for the following reasons:
Because the court erred in overruling the
objection of the plaintiff to the admissibility of the trust deed
Because the court erred in holding that the
trust deed was valid and constituted the paramount title as against
the lessors of the plaintiff claiming under the sale made by
The parties, as before remarked, were heard, and the motion
overruled, and the final judgment entered. The concluding statement
of the bill of exceptions was as follows, that is to say: "To
the overruling of which motion and entry of judgment as aforesaid,
the plaintiff then and there excepted;"
the exception being
plainly to the overruling of the motion for a new trial, and to
the entry of judgment; not to the ruling of the court on the
subject of either the marshal's or the trust deed.
bill of exceptions, which was entitled
"CASE," followed. It occupied in the printed transcript of the
record presented to this Court, fifty 8vo. pages in small pica
type. It had not the nature of a case stated, or agreed statement
of facts, in the stricter sense in which that expression is used by
the profession or courts, but was made up of a variety of things.
It contained, on the one hand, the evidence and exhibits which the
lessors of the plaintiffs
introduced, and parts of which,
as the record showed, had been admitted under objection from the
other side, while other parts were received without objection. In
cases where objections were made and overruled, it is
sometimes that the defendants excepted; while in
some instances that statement was omitted. In one instance, where
evidence offered by the plaintiff's lessor was rejected, it is
stated that the plaintiff
Page 68 U. S. 596
excepted. On the other hand, it contained the evidence and
exhibits introduced by the defendants,
with or without exception, and as in regard to the evidence on the
other side, when exception was made and overruled, an exception was
sometimes stated and sometimes not. Over and above all which,
various matters, introduced on both sides, were given, to-wit,
judicial records, written and oral testimony, instruments in
writing and facts, sometimes admitted absolutely, sometimes
introduced conditionally, and subject to the court's opinion as to
their competency and value. No rulings of the court, nor its final
judgment, were given, but after the signatures of the respective
counsel, one representing the plaintiff and the other the
defendant, the whole concluded with a statement, signed by the
judge and under his seal, in these words:
"This was all the evidence given on the trial of said cause. And
the plaintiff prays this, his bill of exceptions,
signed, sealed, and made a part of the record herein, which is
Page 68 U. S. 597
MR. JUSTICE CLIFFORD, after stating the case, delivered the
opinion of the Court.
Exceptions to the first bill, as written out and sealed, are
plainly and undeniably to the overruling of the motion for a new
trial, and to the subsequent entry of the judgment, and not to the
rulings of the court as to the validity of the trust deed or its
legal effect as a paramount title over that claimed by the lessors
of the plaintiff.
Authorities are numerous that a motion for a new trial in the
federal courts is a motion addressed to the discretion of
Page 68 U. S. 598
the court, and that the decision of the court in granting or
refusing it is not the proper subject of a bill of exceptions.
5 Cranch 11; Mar. Ins.
Co. v. Young,
5 Cranch 187; McLanahan v. Universal
1 Pet. 183; United
States v. Buford,
3 Pet. 32; Barr v.
4 Wheat. 213; Blunt v.
7 Wheat. 248; Brown v.
4 How. 4.
Indeed, the universal rule of practice is that matters resting
entirely in discretion are not reexaminable in a court of errors,
and there can be no departure from that rule in this Court without
overruling its settled practice from the organization of the court
to the present time. Presumption, therefore, in this Court is that
the motion for new trial was properly denied, and if so, then the
defendants were entitled to judgment. Ruling of the court was that
the trust deed was the paramount title, and to that ruling no
exception was taken, and consequently, when the motion for new
trial was overruled, the right of the defendants to judgment became
complete. Entry of judgment, therefore, was properly made, and the
exception to the action of the court in that behalf as erroneous is
without any foundation whatever. Error of the court, if any, was in
the ruling that the trust deed was the paramount title, and if the
plaintiff desired to sue out a writ for error to revise that
ruling, he should have excepted to it at the time it was made.
Y. & C. Railroad Co.
18 How. 251.
He insists that he did so, because it is so stated in the
minutes of the case as appears in the transcript, but the
insuperable difficulty in supporting that proposition is that
nothing of the kind appears in the bill of exceptions. Where
exceptions are taken to the ruling of the court in the course of a
trial to the jury, such an entry is frequently made in the minutes
of the case, or of the presiding justice, as evidence of the fact,
and as a means of preserving the rights of the party in case the
verdict should be against him and he should desire to have the case
reexamined in the appellate tribunal, but it was never supposed
that such an entry could be of any benefit to the party unless he
seasonably availed himself of the right to reduce the same to
Page 68 U. S. 599
and took proper measures to have the bill of exceptions sealed
by the judge presiding at the trial, or in other words, such an
entry in the minutes can only be regarded as evidence of the right
of the party seasonably to demand a bill of exceptions, but it is
not the same thing, and has never been so considered in the federal
courts or in any other jurisdiction where the rules and practice of
the common law prevail.
II. Authority was conferred by the seventeenth section of the
Judiciary Act upon all the courts of the United States to make and
establish all the necessary rules for the ordinary conducting of
business in the said courts, provided such rules were not repugnant
to the laws of the United States. 1 Statutes at Large 83.
Pursuant to that authority, the several circuit courts,
immediately after the judicial system of the United States was
organized, adopted the form for bills of exceptions as known at
common law, and the practice has been uniformly followed to the
present time, without question or any material variation. Bills of
exceptions, therefore, in the federal courts, are required to be
drawn as at common law, under the statute of Westminster 2, 13 Edw.
I, chap. 31, passed in the year 1285, and of course they must be
sealed by the judge, as therein required. 1 Pick.Stat., 206; 2
Tidd's Practice, 862; 1 Arch.Prac. by Chitty (11th ed) 443; 2
Inst., 427; 2 Bac.Abr. by Bouvier, 113.
Justiciarii apponant sigilla sua
is the express command
of the statute, and so is the commentary of Lord Coke which has
always been regarded as of the same authority as the statute on
which it is founded. 2 Inst. 428; Strother v. Hutchinson,
4 Bing.N.C. 89.
Party aggrieved might, before the enactment of that statute, sue
out writ of error to correct an error in law apparent on the
record, or for an error of fact, where either party had died before
judgment, but the writ would not lie for an error in law not
apparent on the record, as for a refusal to instruct the jury as
requested, or for an erroneous instruction given, or for an
erroneous ruling in admitting or rejecting
Page 68 U. S. 600
evidence. Consequently, where either party alleged anything
which was overruled by the court, the party was
without remedy because, being an error in law and not apparent in
the record, the appellate tribunal could not take judicial
knowledge of the proceeding. Statute under consideration was passed
to obviate that difficulty and to prevent the injustice flowing
from it, and throughout the long period it has continued in force,
it has ever been regarded as an eminently just and highly
beneficial regulation. Writs of error, it is true, bring up the
whole record, and it is undeniably competent for the court to
reverse the judgment for any apparent error, whether it appear in
the bill of exceptions or in any other part of the record.
6 Cranch 221; Cohens
6 Wheat. 410; Garland v.
4 How. 131; Bennett v.
11 How. 669.
But when a party is dissatisfied with the decision of his cause
in an inferior court, and intends to seek a revision of the law
applied to the case in a superior jurisdiction, he must take care
to raise the questions of law to be revised and put the facts of
the record for the information of the appellate tribunal, and if he
omits to do so in any of the methods known to the practice of such
courts, he must be content to abide the consequence of his neglect
or oversight. Suydam v.
20 How. 433.
Unless an exception is reduced to writing and sealed by the
judge, it is not a bill of exceptions within the meaning of the
statute authorizing it, and it does not become part of the
Were it otherwise, then a bill of exceptions would never be
necessary, because if the statement in the minutes is sufficient in
one case, it must be in all, which cannot for a moment be admitted,
as it would overturn the unbroken practice in courts of error from
the passage of the Statute of Westminster to the present time.
Seal, as required, is to the bill of exceptions, and not to each
particular exception therein contained. Many exceptions may be
inserted in one bill of exceptions, and of course it is sufficient
if the bill of exceptions is sealed at the close. Accordingly the
Page 68 U. S. 601
in the first and second circuits is to put every exception taken
at the trial into one bill of exceptions, which makes the records
III. Second bill of exceptions, so called, is denominated the
"case" in the record, and extends through more than fifty pages of
the transcript. First, it contains all of the evidence and exhibits
introduced by the lessors of the plaintiff, and the record shows
that portions of the same were admitted under the objection of the
defendants, and other portions without objection. When objections
were made and overruled, it is stated in some instances that the
defendants excepted, and in others that statement is omitted.
Evidence offered by the lessors of the plaintiff in one instance
was rejected, and in that case it is stated that the plaintiff
excepted. On the other hand, it contains, in the second place, all
the evidence and exhibits introduced by the defendants, whether
admitted under objection or without objection, and as in the case
of the lessors of the plaintiff, when the objection made was
overruled by the court, it is in some instances stated that the
plaintiff excepted to the ruling, and in others that statement is
omitted. Matters so introduced on the one side and the other
consist of judicial records, written instruments, depositions, oral
testimony, and certain other facts, either absolutely admitted by
the parties or their counsel or provisionally introduced, subject
to the opinion of the court as to their admissibility and legal
effect. Rulings of the court, as stated in the first bill of
exceptions, are not given, nor is it stated what was the final
judgment of the court. Appended to the statement are the signatures
of the respective counsel, and the conclusion of the paper is as
"This was all the evidence in the case, and the plaintiff prays
that this his bill of exceptions may be signed, sealed, and made a
part of the record herein, which is done,"
and the same is signed by the presiding justice and is under his
IV. Nothing further need be remarked to show that no proper
foundation is there laid for the revision of the rulings of the
court, to which the lessors of the plaintiff now object, because
those rulings are not mentioned in the paper, so
Page 68 U. S. 602
that even if it could be regarded as a bill of exceptions, it
would be equally unavailing to the plaintiff as a means of
accomplishing the object he desires. Where the objection is to the
ruling of the court, it is indispensable that the ruling should be
stated, and it should also be alleged that the complaining party
then and there excepted to the same. Both conditions are wanting,
and indeed the paper is irregular or defective, and insufficient in
many of the substantial elements of a proper bill of
V. Suggestion was also made at the argument that if the paper
was not available to the plaintiff as a bill of exceptions, still
the evidence, as reported, might subserve his purpose as an agreed
statement of facts; but we think not for several reasons.
because it merely gives the evidence as it was
introduced on the one side and the other, and leaves the results of
the evidence to be found by the court, as if sitting as a jury.
because it does not contain the rulings of
the court which the plaintiff desires to have revised; and,
because if both of the preceding objections
were obviated, still it would not be competent to revise the
rulings of the court below in that mode. 2 Tidd's Practice, 896;
Seward v. Jackson, 8 Cow., 406.
Decisions of this Court establish the rule that writs of error
will lie where the judgment in the court below was founded upon an
agreed statement of facts as well as when founded upon the verdict
of a jury. United States v.
16 Pet. 291; Stimpson
v. Railroad Co.,
10 How. 329; Graham v.
18 How. 60.
Judgments of the circuit court may also be revised here upon
writ of error in cases where they were founded upon a special
verdict, or upon demurrer to evidence. Suydam
20 How. 435; 4 Chitty's Gen.Prac. 7;
2 Inst. 427.
None of the modes suggested, however, enables the complaining
party to review or reexamine the rulings of the court except that
of the bill of exceptions.
Page 68 U. S. 603
1. Agreed statements rest upon the consent of the parties, and
consequently the action of the revising tribunal must be confined
to the agreed facts and the facts cannot be said to be agreed while
the parties are at issue as to the admissibility or competency of
2. Special verdicts are where the jury find the facts of the
case and upon those facts refer the decision of the cause to the
court with a conditional conclusion that if the court should be of
opinion that the plaintiff, upon the facts found, has a good cause
for action, then they find for the plaintiff, but if otherwise then
they find for the defendant. Rulings of the court, however, in
admitting or rejecting evidence are never properly included in a
special verdict, any more than in an agreed statement of facts,
because, when reduced to form, the verdict is then entered on the
record, and the judgment of the court is based upon the findings of
3. Evidence must first be admitted before it is properly the
subject of demurrer, and when a party elects that mode of trying
the case, he thereby waives all objections to the rulings of the
court in respect to evidence rejected, as well as to that
previously admitted, so that in no point of view can the paper
under consideration be regarded as sufficient to lay the foundation
for a revision of the rulings which are the subject of
VI. Having come to the conclusion that the paper in the
transcript is not a good bill of exceptions, agreed statement of
facts, or a special verdict, the result is that it is not a part of
the record, and under the circumstances of this case, it must be
wholly disregarded by the court in determining whether the judgment
of the court below ought to be reversed or affirmed.
2 Wheat. 363; Suydam
20 How. 439.
Special circumstances induced the Court, in Burr v. Des
Moines Nav. R. Co.,
decided at the present term,
p. 68 U. S. 99
dismiss the writ of error and allow the parties an opportunity to
make a further effort to present the case in some proper form; but
the Court in that case held that the legal presumption was in favor
of the correctness of the
Page 68 U. S. 604
judgment. Where a case is brought here upon a writ of error,
issue under the twenty-second section of the Judiciary Act, and
there is no bill of exceptions, agreed statement, or special
verdict in the transcript, the general rule is that the judgment
will be affirmed, as is shown by repeated decisions.
20 How. 441; Minor v.
2 How. 392; Kelsey v.
21 How. 85; Guild v.
18 How. 135; Stevens v.
19 How. 64; Taylor
2 Black 484.
In the case last cited, this Court said that when a cause is
brought into this Court upon a writ of error sued out under the
twenty-second section of the Judiciary Act, and all the proceedings
are regular and correct, it follows from the express words of the
section that the judgment of the court below must be affirmed
although there is no question presented in the record for
The judgment of the circuit court is, therefore,
Affirmed with costs.