In this case delivered the following dissenting opinion:
Mr. Justice LipscombThis suit was brought by the appellant to recover a tract of land to which he claimed title, derived from Thomas W. .Bla-key, it being part of the league granted as' a headright to the said Blakey by the government of Mexico, and the controversy seems to have been, whether the land sued for was embraced within Blakey’s league or not.
From the manner in which the record has been sent up, it is difficult to understand what was the evidence, or what was decided in the court below. The bill of exceptions refers to original papers, a considerable file of which have been sent up under the following order of the judge:
“ It is further ordered by the court, that that the clerk of this court send up to the supreme court all the original papers used as evidence by each party.”
It is evident that this court, having appellate jurisdiction only in this case, cannot pass in judgment on the papers so sent up, because it does not appear that they compose a part of the record, nor does it appear what, if any, judgment has been passed on them by the court below.
The order for their transmission was in direct contravention of rule 5, adopted by this court at the December term, 1846. There was a bill of exceptions, from which it appears that the defendant offered in evidence a certificate marked X, objected to by the plaintiff, and the objection overruled by the court. LFo such certificate, marked X, is to be found in the record, nor in the original papers. The bill of exceptions further shows *65that three several surreys, made by the county surveyor, marked E, G and H, were given in evidence by the defendant and objected to by the plaintiff, but the objection overruled; and it states that they were made exhibits in the defendant’s plea. In the record of the plea but one is referred to, and it is designated as exhibit A, and each of the three surveys, sent up as original papers, is marked A. There is so much uncertainty about these papers, that, even if we were disposed to treat them as records of the case, it would be impossible to understand what point was presented by them, or what was the decision of the court on their legal effect. It is usual, when the record is so defective as not to show error affirmatively, to hold the appellant responsible, particularly if he had been the plaintiff below, and to let the judgment stand. But, inasmuch as the court below erred in sending up the original papers, I believe we are bound to send the case back, because the court below had no right or power to order the original papers to be sent up to this court, whatever may have been the wishes of the parties on the subject.
The 5th rule is explicit. “No original paper used in the court below shall be sent up as a part of the record, unless it is specially ordered to be sent up by the supreme court.” This is a salutary rule for the protection of the original papers. In this ease, valuable private papers, belonging to third persons, have been sent up to this court, exposing the owners to much trouble, and perhaps irretrievable loss, without any sufficient guarantee against such loss.
It is objectionable, too, in this: that it leaves the matter to the clerk to decide what papers had been used on the trial, and would open an investigation in this court as to whether they had been used or not. It is true that sometimes, though rarely, an original paper might be required in this court. The court below is sometimes called upon to decide for inspection, on the reading or on the execution of an instrument. The first it would be most proper to decide on the evidence of experts; in the latter the judge would be called upon to decide on his own inspection. Should his judgment be under revision, the pres*66ence of the paper would be required in the appellate court. In such cases, the party appealing would only, under the rule before cited, have to procure the order of the supreme court to have it sent up; and in the order the rights of third persons would, no doubt, be sufficiently guarded and protected.
If the original papers had been made a part of the record, and shown in what way, or for what purpose, they had been used, I am not prepared to say but there was error in the- admission of some of them. One of the surveys, certified to by the county surveyor, is for a league of land for Blakey, starting at the starting point of the original survey and field notes of his grant, but whollydisregardingthe metes and bounds of his survey, and running out the quantity called for. If this paper went to the jury without'any direction from the judge, it was well calculated to mislead the jury, and induce them to believe-that they must he governed by the quantity, regardless of the designated metes and bounds of the grant; and when so run, if it did not include the land in controversy, they must find for the defendant. This, as a general proposition, I have no hesitation in- saying was error; as designated metes and bounds must govern both courses and distances. I do not consider the-fact that the error, if any, growing out of the order for the-transmission of the original papers, not being the fault of the appellee, but of both parties, or of the judge, and consequently he ought not to be taxed with the cost, as entitled to any weight. It often occurs that a party suffers by the error of the judge, and in this case I think the judge erred in ordering the-original papers sent up.