dissenting. This case has been before this court for several years. When it was first adjudicated, at the July term, 1842, the majority of the court considering the testimony adduced on the trial of the circut court, the issue having been submitted to the court without the intervention of a jury, as legally and properly presented so as to demand the judgment of this court thereon in regard to the questions of fact involved in the issue, as well as the legal questions necessarily arising thereupon and decided by the circuit court, notwithstanding no question had been made by either party as to the admissibility or legal effect of the testimony, nor any opinion expressed by the court as to the legal rights of the parties established thereby or demanded by either party, nor any exception taken to any opinion or proceeding of the court pending the trial, nor until final judgment therein had been pronounced. And so, regarding the case, and considering the testimony as shown by a paper purporting to be a bill of exceptions to the opinion and final judgment of the court, as showing a case agreed or one in its character equivalent thereto, held that the testimony failed to establish such facts as, in law, would fix upon the bank a liability to the plaintiffs below for the demand in question, reversed the judgment of the circuit court, and remanded the cause for further proceedings to be there had consistent with law, and not inconsistent with said opinion. From this opinion I then dissented, and subsequently filed my opinion in writing, setting forth the ground and reasons of my dissent. At the same term, that is, at the July term, 1842, a few days after this judgment was pronounced, and before any transcript thereof had been obtained by either party, which, by our practice, supplies the place of a formal mandate, the defendants in error moved the court to reconsiderjthis opinion and judgment. The court entertained this motion, and thereupon entered an order expressly granting to the defendants in error, time until the first day of the next term, to file their argument or petition in writing, setting forth, according to the rules and practice of the court, the ground of the motion, and the reasons upon which they solicited a reconsideration and rehearing of the cause, and then continued the case until the next term. The defendants in error complied strictly with the terms of the order by filing their argument or petition in writing on the first day of the next term, during which the cause was thereupon submitted to the court, and taken and held by the court under advisement until its July term, 1843. At its July term, 1843, the court sustained the motion, set aside the opinion and judgment pronounced at the July term, 1842, and ordered the cause to be reconsidered, reheard, and readjudicated; and it was again, during the same term, at the special adjourned session thereof, in October, 1843, submitted to the court with additional arguments and briefs, and taken., continued and held by the court under advisement until the present term, (July term 1844,) when, by the opinion of the court, verbally pronounced on the dlkday of August, 1844, it was held that this court, since the close of the July term, 1842, possessed no power whatever over the case to adjudicate it: and that all the proceedings therein, subsequently thereto are null and must be set aside or disregarded, and the judgment pronounced therein at the July term, 1842, be therefore considered the final judgment of this court in the cause, and, as such, be enforced. When this opinion was pronounced, I dissented thereform. But the court, two days after, without any application of either party, set aside this adjudication, delivered its opinion in writing and again pronounced its judgment, reversing the judgment of the circuit court, and remanding the case for further proceedings, &c. The principles asserted by the court in the opinion now expressed, according to my understanding, are essentially, if not identically the same asserted at the July term, 1842, and at this term when the first opinion was delivered, together with some others now for the first time directly or incidentally stated and adjudged. The court, according to my understanding of its opinion deciding that its power over a case in which final judgment is pronounced, ceases and is forever determined at the close of the term in which said judgment is pronounced, in all cases in which such judgment is not, during the term in which it is pronounced, expressly and absolutely annulled, set aside and recalled; and that the court cannot, by any act, suspend its judgment once pronounced and not so recalled and set aside, so as to retain power over it and set it aside at a subsequent term. If this principle is not adjudged, I know not what principle the court intend in this particular to assert. If it is, it seems to me to be unsound, or, at least, inaccurately stated. As a general rule it is certainly true that the power of a court of common law over its judgments ceases and is forever determined when the term in which they are pronounced is closed. But during the term, the court, according to the practice in this State, and most if not all of the States in this Union, has been uniformly considered as possessing the power to recall or set aside and vacate its most solemn judgments: the proceeding for this period being considered in fieri) or within the breast of the judge, and subject to the control of the court. This I conceive to be not in strict accordance with the principles of the common law, or the practice in the courts of England; but it is, to this extent at least, so essentially a matter of practice, subject to the control of every court not in this respect restricted by constitutional or statute laws, that in the absence of such restraint, there can be no legal objection to its exercise, and according to my understanding of its opinion,rthe court concedes this power to all the courts of this country. Here there was no order at the July term, 1842, expressly,and in terms vacating, recalling or setting aside the judgment then pronounced, which is, in form, final; and if the act of the court entertaining the motion for a reconsideration, granting thereupon time to file the argument in writing required by its rules of practice, and ordering the case to be continued until the next term, had mot in law the effect of suspending the judgment, it became of course, at the close of that term, conclusive as well upon the court as the parties. But being, as I conceive, purely a question of power, its authority must have been retained, and continued plenary in the court after the close of that term, or have become entirely extinct upon its close: it is a question as to which there can be no middle ground. If the power of this court over the case ceased, when the term closed, in which its original or first judgment was given, and it surely'did if‘the principle asserted by the court be correct, then its solemn judgment at the July term, 1843, by which the former judgment purports to have been set-aside, and that by which the case now purports to be finally determined, are mere nullities, noxiously incumbering the judicial records of the court. If it did not so cease, the judgment of the present term, as to this question, must overrule not only the uniform practice of the court from its first organization, but also its own solemn determination as to the same point made in this case at July term, 1843, and furthermore make void the whole .proceeding at the last and present terms in a case between Ashley and Hyde and Goodrich, in which a reconsideration was granted, notwithstanding no written argument was filed until the second term after the motion therefore was made, and the former judgment was never suspended by any express order, and the first judgment set aside, and one entirely different pronounced, the latter affirming the judgment of the circuit court, which had been reversed by the first judgment pronounced in the case by the court. This appears to me to be a much stronger case, and one to which the principle, here declared, applies more forcibly than it does to the one now under consideration. But, if the principle .adjudged be as I suppose it is, and have stated it, there can be but little doubt that all of the proceedings in both cases subsequent to the term in which the first judgment was given in them respectively, must, if suchbe the true rule of law, be considered absolutely void.
But notwithstanding this question, according to the view taken of it by the court, must be purely a question of power to be determined upon a consideration of the fact as to whether the court did or did not set aside its own judgment at the term in which it was rendered; yet, regardless of this principle, the court appears to treat it, in regard to its application to this case, as a mere question of expediency, and not of power, by declining to give to it any retro-active operation; or, in this case, any operation whatever, or at most the force only of a newly established or discretionary rule, thus limiting its operation in a manner which appears to me to be, not only directly opposed to the principle asserted, but wholly unauthorized by law. In any view of the subject, the question, as I conceive, must depend upon the legal consideration or effect of the acts of the court, at the time in which the first judgment was pronounced. If they in law are such as suspend the judgment, it has none of the legal properties of a judgment, so long as it remains suspended, and cannot conclude any right either of the parties or of the court. It remains during such period in fieri, or in the breast of the court, and, in law, amounts to nothing more than a judicial intimation of the opinion then entertained by the court, but which is subject to be changed, if upon more mature consideration of the subject, it shall be found to-be, in any respect, erroneous. And such I understand to be the legal effect and operation of a motion for a reconsideration properly filed, according to the rules and practice of the court, and entertained and continued, and not disposed of by the court. It is in fact one method adopted by the court of withholding or temporarily recalling and setting aside a judgment previously pronounced at the same term, until the court shall be more fully advised, what judgment the law denounces upon the premises. But from the time the motion is overruled, and the court refuses to rehear the cause, the judgment previously pronounced becomes operative as a judgment, and concludes the parties in respect to their rights thereby determined, and the court, with the close of the term, is divested by law of its authority to re-adjudicate the case, as to any right determined by its previous adjudication thereof. This principle, according to my view of the subject, is fully sustained by the Supreme Court of the United States, wherein the case Matheson’s admr. vs. Grant's admr., 2 How. Rep. 263, that court sustained the judgment of the circuit court, where, on affidavits filed, it set aside its order made two terms previously arresting the judgment, and thereupon so amended the general verdict returned before the arrest ofjudgment, as to apply it to one count only of a declaration containing two counts incompatible in law with each other. The plaintiff by one demanding the thing in controversy, as administrator, as by the other, as of his own personal right, for which misjoinder of causes of action the judgment had been arrested; and upon the verdict so amended, entered up final judgment for the plaintiff as administrator, on the count alleging the demand in that right. In principle I consider this a much stronger case against the power of the court, than the case just determined by this court. Yet I regard the principle involved in both asstrictly an alogous, and, in each class of cases, as well sustaining the authority exercised by the court. I therefore consider this case as legally pending in this court for adjudication, and all orders made and judgments given in the same, subsequently to the first judgment pronounced therein, as valid, and in point of authority fully warranted by law.,
The court, also, according to my understanding of its opinion, announces its intention to restrict its own action in future, in regard to all applications for reconsideration to the term in which the application is made. This rule, unless subjected to many exceptions, appears to me exceedingly objectionable, because in practice it not unfrequently happens, that cases of the greatest magnitude and difficulty are de-termed at or very near the close of the term, and in some instances the decision is based upon principles not discussed at the bar, which the parlies had not previously conceived to be involved in the litigation. In such cases, and many others, I consider it but simple justice that the parties desiring it should be allowed an opportunity to show, if they can, that the court, in its opinion and judgment, has misconceived either the facts or the law, or misapplied the latter to the former; and such indulgence cannot, as I conceive, in the slightest degree diminish the public confidence in the tribunal or its determinations, but, on the contrary, must tend greatly to inspire and confirm it. For certainly. few things are better calculated to shake and destroy the public confidence in a tribunal of the first grade and last resort, than an impression, however unfounded, that it is not inclined to hear any temperate and respectful argument against, or even criticism upon its public acts, and especially when they are designed to procure the correction of errors, which the party conceives the court to have fallen into, either to the prejudice of his rights or the claims of public justice; or disposed to act definitively upon any matter without investigating it fully, and receiving and deliberately and maturely considering every circumstance and argument, by which the right determination of the matter may be influenced. Such, I am sure, is not the design of the court in adopting this rule, yet its rigid observance would, I am convinced, produce such consequences. I conceive, therefore, that upon every consideration of the subject, the rule, as it has hitherto existed and been practiced upon in ■ this court, is not only highly expedient, but, in every just view of the subject, greatly conducive to the better administration of public justice; is entirely consistent with the spirit of the laws of the land and the genius of our political institutions, and the high respect due to the court; and if properly observed and discreetly carried into practice by the court, is well calculated to preserve harmony and consistency in its decisions, to satisfy the just expectations of the parties litigant and increase the public confidence in the tribunal. Consequently, 1 am opposed to the change indicated by the court. Besides which, the establishment of the rule in this case, in the determination of which it is not allowed to have any influence whatever, appears to me to be gratuitous; if not altogether objectionable; inasmuch as the previous practice is expressly sanctioned by the 13th rule of practice, adopted by the court shortly after its organization. And if it is the intention to abrogate or even modify this rule, it would, according to my view of the subject, be more appropriately done by acting directly upon the rule, and expressly rescinding or changing it.
Passing from the consideration of this rule of practice, the court, according to my understanding of its opinion, proceeds to draw a distinction in regard to the rules of practice established by law, between cases submitted to a jury and those decided by the court without the intervention of a jury: and determines that in the former, no exception to the verdict can be taken and reserved by bill of exceptions, so as-to bring the facts adduced in testimony before the appellate court for its consideration, with a view to any revision of the verdict predicated-thereon. But that in the latter, the facts may, by bill of exception» to the opinion or determination of the issue by the court, be legally made parcel of the record of the cause, and that, in such case, this court is bound to consider and review the facts and revise the opinion and decision of the court thereon; which is but asserting mpre distinctly the principle upon which the court proceeded in its opinion-previously delivered in this case at the July term, 1842; basing it now upon the supposed authority of certain adjudged cases not noticed in-the former opinion. From that opinion I then felt constrained to dissent, and I now refer to my dissenting opinion then delivered, as showing substantially the grounds and- reasons of my dissent to this part of the opinion now delivered. And in addition thereto Í think proper to state my understanding of the principle upon which-the Supreme Court of the United States proceeded in its disposition of the case of Parsons vs. Armor & Oakley, 3 Pet. R. 413, cited by the court as establishing the rule in this particular adjudged in this case.
The case last cited was brought before the Supreme Court by writ of error from the District Court of Louisiana District, exercising circuit court jurisdiction. It was a suit prosecuted in the district court, according to its practice, in the forms of the civil law, in which judgment was rendered by the eourt, the parties having waived the trial by jury. The record consisted of the petition, the answer, the whole-testimony, as well depositions as documents, introduced by either party,, and the fiat ofthe judge, that Armor, the plaintiff below, recover lire-debt as demanded. So much ofthe opinion of the Supreme Court, as in any manner relates to the principle of law or rule of practice now in discussion, is expressed in the following language: “In the argument counsel considered the cause as in nature of a case stated, that is, a substitute foe it special verdict, but this court could not avoid noticing that the precedent might involve it in the necessity of exercising jurisdiction over cases of a very different character. This writ of error does not bring up a mere statement of facts, but a mass of testimony, and however consistent and reconcilable the testimony may be in this case, it may be very different in future cases coming up from the same quarter, and by means of the same process.” “ The difficulty is to decide under what character we shall consider the present reference to the revising power of this court. If treated strictly as a writ of error, it is certainly not an attribute of that writ, according to common law doctrine, to submit the testimony as well as the law of the case to the revision of this court; and then there is no mode in which we could treat the case, but in the nature of a bill of exceptions; that is, to confine ourselves entirely to the question, whether, giving the utmost force to the testimony in favor of the party in possession of the judgment below, he was legally entitled to a judgment. But this would often lead this court to decide upon a case widely different from that acted upon in the court below. There may be conflicting testimony and questions of credibility in the cause, which this court would be compelled to pass by. This would be increasing appellate jurisdiction on principles very different from the received opinions and judicial habits of that State; and, it has been argued, equally inconsistent with the rights extended to them by Congress.” “We feel no difficulty from the bearing of the seventh amendment of the constitution in this case; because, if this be a suit at common law in the sense of the amendment, the object was to secure a right to the individual, and that right has been tendered to him and declined. The words of the amendment are “the right to the trial by jury shall be preserved.” Nor are we at liberty to treat this as an appeal in a case of equity jurisdiction under the act of 1803; because the party has not brought up his cause by appeal, but by writ of error.” “The present case is one which may be treated as a bill of exceptions, or a case submitted. Since, giving the utmost force to the testimony in favor of Armor, we are of opinion that the judgment must be reversed. We shall proceed therefore to examinethe merits upon that principle, without committing ourselves either upon the extent of the appellate power of this court over that of Louisiana, or the appropriate means of exercising it.”
To my understanding it appears manifest, upon even the most superficial reading of this opinion, that, so far from establishing the principle or rule, which it cited by the court to sustain, its existence is most clearly and explicitly denied throughout the opinion. The language conveying the idea that the court, in such cases, cannot advert to or consider the testimony in the case for the purpose of revising the conclusions of fact deduced therefrom, whether found by the court or jury; that is, whether ascertained and determined by the opinion or judgment of the court or the verdict of a jury, appears to me to pervade every part of it, and set forth the principle so perspicuously and unequivocally as to exclude all doubt, and admit of no interpretation different or to the contrary. But if there ever could have been entertined any reasonable doubt as to this being the true understanding of the opinion of the Supreme Court in the cases last cited, it seems to be placed beyond all doubt or controversy by the subsequent decisions of the same court.
In the case of Hyde & Gleises vs. Booraem & Co., 16 Pet. R. 169, brought before the Supreme Court by writ of error from the circuit court of the Eastern District of Louisiana, the proceedings in which conformed to the Louisiana practice, and the case was decided by the court without the intervention of a jury by the consent of the parties and the record, in addition to a statement of the facts, oh which the judge relied in making his decision, stated by him at the request of the defendant’s counsel, contained “at large the whole evidence at the hearing. ’’The court, in its opinion, says: “One of the embarrassments attendant upon the examination of this cause in this court, is from the manner in which the proceedings were had in the court below. We have no authority, as an appellate court, upon a writ of error to revise the evidence in the court below, in order to ascertain whether the judge rightly interpreted the evidence or drew right conclusions from it. That is the proper province of the jury, or of the judge himself if the trial by jury is waived and it is submitted to his personal decision. We can only re-examine the law, so far as he has pronounced it, upon a statement of the facts, and not merely a statement of the evidence of facts, found in the record in the nature of a special verdict on an agreed case. If either party in the court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this court by an appropriate exception in the nature of .a bill of exceptions, and should not be mixed up with his supposed conclusions in matters of fact. Unless this is done, it will be found extremely difficult for this court to maintain any appellate jurisdiction in mixed cases in the nature of the present. The same embarrassments occurred in the case of Parsons vs. Armor, 3 Peters 413, and was there rather avoided by the pressure of circumstances, than overcome by the decision of the court. Taking this case, then, as that was taken, to be one where there is no conflict of evidence and all the facts are admitted to stand on the record, without any controversy as to their force and bearing, in the nature of a statement of facts, and looking to the allegations and prayer of the petition, and the facts stated by the judge, the question which we are to dispose of is, whether, in point of law, upon these facts, the judgment can be maintained. We are of opinion that it cannot be, and shall now proceed to assign our reasons.” In both these cases, the court, in its opinion as quoted, after stating the common law rule on the subject to be as I have stated, proceeds to consider the facts as properly appearing in the record, and as being uncontroverted or admitted to be the facts upon which the legal rights of the parties depended, instead of the testimony establishing or tending to establish such facts; and so regarding them, determined that the facts did not in law warrant the judgment pronounced upon them: and if such was the case here, the judgment of the court would in this respect be proper. But there is this marked and palpable difference between the cases — that is, that the testimony establishing the facts, upon which the legal right of the parties depends, is not in this case legally made of record so as to enable the court to revise the determination of fact based upon it, while the facts found by the court below' from the testimony, in determining the issues of fact joined by the parties, do in law well warrant and fully authorize the judgment pronounced upon them; and the revision made by this court is therefore a revision of the facts found by the court below from the testimony before it, instead of being, as it was in the cases cited above, a revision of its judgment of the law upon the facts legally ascertained and determined, upon which the legal rights of the parties depend; and therefore this court proceeded in this case upon a principle exactly the opposite of that proceeded upon by the supreme court of the United States in the cases cited. In which the proceedings in the inferior court were throughout had, and conducted according to the rules of practice prescribed by the civil code of Louisiana, according to which the testimony adduced on the trial, on the demand of either party, must be reduced to writing by the clerk, whereupon, without any exception taken in point of law to any opinion of the court, it is regarded as entering into and composing a part of the record of the cause, and therefore the appellate court, in revising the adjudication, is bound to consider it: and this was, manifestly, the view taken of it by the supreme court in these cases; and yet, although it was legitimately a part of the record brought before that court by the writ of error, and was so considered by the court, still it uniformly not only refused to assume the power to revise any determination of fact made in or by the inferior court, but expressly denied its authority so to do. Notwithstanding which, this court cites these cases, and relies upon them as establishing the principle that the appellate court, acting in a case prosecuted throughout according to the forms of practice, and governed by the rules of proceeding and principles of the common law, may legally regard the testimony adduced on the trial, and set out in a paper purporting to be a bill of exceptions to the determination of the issue by the court, or the final judgment of the case founded thereon, as legally constituting part of the record of the case, when the facts are determined by the court without the intervention of a jury; but not so, where a jury intervenes and decides as to the facts involved in the issue; and that in the former it can legally revise the judgment of the court as to its finding of the facts from the testimony, as well as its judgment of law upon the facts so found; and it is in this particular that I consider the rule asserted and acted upon in this case by the court, as violating every rule of the common law, and introducing a practice hitherto unknown, without precedent, and expressly and explicitly rejected by the supreme court in the very case cited as establishing it.
In the case of Parsons vs. Bedford et al. 3 Pet. R. 433, brought before the supreme court by writ of error, from the district court of the United States for the eastern district of Louisiana, the defendant below on the trial moved the court to direct the clerk to take down in writing the testimony of the witnesses examined by the respective parties, in order that the same might appear of record; such being the practice of the several courts of the State of Louisiana, according to the constitution and laws thereof, and such being the rule of practice in the opinion of the counsel for defendant, to be pursued in the district court of the United States, according to the act of Congress of 26th May, 1824. But the clerk refused, &c., and the court refused to order the clerk to write down the same, or to permit the witnesses themselves, the counsel for either of the parties, or any other person to write down such testimony, the court expressing the opinion that the court of the United States is not governed by the practice of the courts of the State of Louisiana. In respect to the testimony in question no charge or advice whatever was given or asked from the court to the jury or any matter of law or fact in the case, nor was any question raised as to the competency or admissibility of such evidence in any way affecting the question now in discussion. These facts were shown by a bill of exceptions taken upon the court’s refusal to require the clerk to reduce the testimony to writing, &c., in which the testimony was not contained.
In regard to this question, the court, considering as to the law arising upon said exception, says “Generally speaking, matters of practice in inferior courts do not constitute subjects upon which error can be assigned in the appellate court. And unless it shall appear that this court, if the omitted evidence had been before it on the record, would have been entitled to review that evidence, and might, if upon such review it had deemed the conclusion of the jury erroneous, have reversed the judgment and directed a new trial in the court below, there is no ground upon which the present writ of error can be sustained.” “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. The whole object therefore, of the application to record the evidence, so far at least as this court can take cognizance of it, was to present the evidence here in order to estaba lish the error of the verdict in matters of fact. Could such matters be properly cognizable in this court upon the present writ of error? It is very certain that they could not upon any suit and proceedings in any court of the United States sitting in any other State in the Union than Louisiana.”
After considering the authority and rules of proceeding prescribed/ by the constitution and laws to the courts of the United States, and particularly the act of 1824, the opinion concludes thus, “The terms of the present act may well be satisfied by limiting its operation to modes of practice and proceeding in the court below, without changing the effect or conclusiveness of the verdict of the jury upon the facts litigated at the trial. Nor is there any inconvenience from this construction: for the party has still his remedy by bill of exceptions, to bring the facts in review before the appellate court, so far as those facts bear upon any question of law arising at the trial; and if there be any mistake of the facts, the court below is competent to redress it by granting a new trial.” “Our opinion being that if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial the refusal to allow that evidence to be entered on the record is not matter of record for which the judgment can he reversed.”
These cases appear to me to settle beyond controversy the question, that the appellate court, adjudicating according to the principles of the common law on a writ of error, possesses no revising power whatever over the facts established by the verdict of a jury, and cannot-consider the testimoney for the purpose of correcting, directly, such finding. The same principle is asserted in the case of Brockett et al. vs. Brockett, 2 Howard Rep. 238.
And in a subsequent case, the same court decides expressly that it has no more right to revise the facts found by the court, where they have been submitted to the court without the intervention of a jury, than it has when they are found by a jury, and that in either case objections thereto must be taken in the same manner precisely; that is, by exceptions properly taken and reserved to the competency Of admissibility of the testimony, to some advice or instruction of the court given or refused, or, according to our practice, to the opinion of the court granting or refusing a new trial. If there could have been, previously, any doubt as to the true understanding of these adjudications and the opinion of the supreme court as to the governing principle and true rule in such cases as the present, it must, as it seems to me, be entirely dispelled since the decision of the case last alluded to, that is, the case of Minor and wife vs. Tillotson, 2 Howard R. 392, decided by the supreme court at its last term. This is also a case brought before the supreme court by writ of error to the circuit court for the eastern district of Louisiana. It was a suit for the recovery of the possession of certain lands, and for damages, &c. The defendant set up title to the premises, and pleaded prescription under the laws of Louisiana. The cause was 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 bills of exceptions were drawn 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 defendant.”
In its opinion in this case, the supreme court says, that “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 in 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 decision of the case of Parsons vs. Bedford et al. 3 Peters 445, there could he no misapprehension in regard to the proceedings of this court on a writ of error. In that case, the court say, “it was competent for the original defendant to have raised any points of law growing out of the evidence on the trial, by a proper application to the court; and to have brought any errors 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 go on to consider the effect of the act of 1824, in regard to the Louisiana practice, and hold that the 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 were called upon to determine the questions of law arising upon the facts.”
In the case of Parsons the court do say “that if the evidence were before them, it would not be competent for the court to reverse the judgment for any error in the verdict of the jury.” And they say, ‘'•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 been 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 thk circuit court, it is not a case for revision in this court.”
I have quoted thus largely from these opinions, because in my opinion they not only confirm to the full extent every principle and rule of practice applicable to the present case, precisely as I have stated them and urged their enforcement therein, but express the true rule more aptly, explicitly and authoritatively, than I otherwise should or probably could have done. And also, because I am well convinced that the principles and practice asserted in this case by the court, must, if adhered to, inevitably involve this court in inconceivable perplexity, and force it into the exercise of a jurisdiction not conferred upon it by the constitution and laws, alike prejudicial to public justice and private rights.
I am, therefore, after a most careful and deliberate review of the whole subject, well satisfied that the judgment pronounced by the circuit court in this case ought to be affirmed.
Judgment reversed.