William Proctor, Plaintiff in Error, vs. Isaiah D. Hart, Defendant in Error, 5 Fla. 465

DuPONT, J., delivered the opinion of the Court. This case is brought up from the Circuit Court of Duval County, by writ of error, and the only errors assigned are the exceptions set forth in the bill of exceptions, which constitutes a part of the record before us. In looking into the record, a difficulty is presented at the thresh-hold, which, in the opinion of the Court, is decisive of this case.

The matters complained of as error, are confined exclusively to the several “ charges1"1 of the Court below, as given and refused, and the bill of exceptions incorporates no portion of the evidence upon which the charges were predicated. If in this state of the record the Court were to proceed to examine the propriety of those charges, they could view them only as abstract propositions ; but it is a well established principle that a refusal to give instructions prayed for on a mere abstract proposition, not bottomed on any color of evidence, will be no ground of exception, (Hamilton vs.

Russell, 1 Cranch, 309 and 318; Greatham vs. Brown, 5 Munroe, 280, 282;) %,nd even where a charge is given to the jury which is entirely abstract, or out of the case, so as not to affect it, although the charge be erroneous as a proposition of law, yet tthis will not constitute a good exception. Vide 3 Philips on Evidence, (Cowen and Hill’s Notes,) 787, citing the following cases: Clarke vs. Dutcher, 9 Conn. R., 674; Smith vs. Carrington, 4 Cranch. R., 62; King vs. Kinney, 4 Hamm., 81; Wardell vs. Hughes, 3 Wend. R., 418; Broffit vs. Williams, 1 Yerger, 89; Norton vs.

Saunders, 1 Dana R., 14, 15. “At common law, a writ of error lay for error in l'aw apparent on the record, and not for error in law not apparent upon the record. If a party allege any matter of law at the trial and was overruled by the Judge, he was without redress, the matter not appearing” on the record. (2 Institutes, 42.) To remedy this evil, the statute was passed which gives the “ bill of exceptions,” through the instrumentality of which the party aggrieved is entitled to make such rulings of the Judge matter of record, which but for the statute would have remained in pais.

The office of the bill of exceptions is very clearly defined in 3 Philips oh Evidence, (Cowen & Hill’s Notes,) at page 790, audit is there stated as follows : “ If the bill be not tacked to the record, it should set out the whole proceedings previous tó the trialf but otherwise it begins with the proceedings, after issue joined’, and in either case it goes on to state the circumstances upon which it is founded, as that a witness was called to establish certain facts, or evidence offered, or challenge made, or demurrer tendered; the allegations; of counsel respecting the competency of the witness ; the admissibility of the evidence, or legal effect of it, &c.; the opinion of the Court or Judge ; the exception of the counsel to the opinion, and the verdict of the jury,” (citing Bul.

N. P., 317, 319; Tidd Prac., 788; 2 Dunlap Prac., 643; Swift’s Ev., 168.) The consequence to the appellant of a defective bill of exceptions, is also stated in the same authority, and is thus set forth: “ The party excepting must, at his peril, place so much in his bill as shows that the Court did err to his prejudice, for the presumption is in favor of the rectitude of their proceeding, and all decisions made will be presumed correct until the contrary appear. (Citing Richardson vs. Dennison, 1 Aik., 20; Adams vs. Ellis, ib., 24; Eaton vs. Houghton, ib., 380; Stearns vs. Warner, 2 ib., 26; Snowden vs.

Warder, 3 Rolle, 1; Harrison vs. Baker, 1 J. J. Marsh., 317, 318; King vs. Kinny, 4 Hamm., 81; McDougal vs. Fleming, 4 ib., 388; Ingraham vs. White, 2 Miller, 294-’8; Reynolds vs. Rogers, 5 Ham., 169, 171.) “ In other words, nothing must be left to conjecture, and if the bill be so loosely drawn as to leave the matter in doubt, the proceeding below will be sustained, notwithstanding there be some reason to suspect that error might have intervened.” Citing Adams vs. Ellis, 1 Aik., 24; Eaton vs. Houghton, ib., 380.

And again — “ Most of our Courts have acted upon the principle above stated, of presuming that the Court below did right until the contrary expressly appear. Accordingly it has been held that if the evidence on which'instructions to the jury were intended to bear be not presented by the bill, the Court will not adjudge such instructions erroneous. (Citing Harrison vs. Baker, 1 J. J. Marsh., 317, 318.) And again — “ When instructions were asked for upon certain facts, it appears necessary to set forth in the bill that evidence of such facts was given to the jury. (Citing Vasser vs.

Smith, 6 Cranch R. 226, 233, Note.) ~Wq have not had access to all of the cases cited, but so far as we have, we find that they fully sustain the principles enunciated. And, indeed, if there ever was any doubt as to the correctness of these principles, that doubt, so far as it mightafiect this cause, has been removed and the doctrine settled, by the ruling in 'the case of Dorman vs.

The Executor of Francis Richard, (1 Florida Reps., 297.) In that case the Court say — “ For aught that appears to the contrary, other proofs besides the note in question may have been presented on the trial below, and such as may have influenced or determined the verdict and judgment; and there is nothing to show that such proof, if so presented, was inadmissible, or otherwise exceptionable at law. In the absence, therefore, of a bill of exceptions showing the testimony exhibited, the presumption is that there was full and adequate evidence before the jury to warrant and support the verdict,” &c.

But if we were without precedent or authority on the point, the doctrine is too obviously based upon sound reason to admit of a doubt.

As a jury cannot be called upon to render a verdict but upon the facts of the ’ case, as made known to them through the evidence, so every charge of the Judge, if applicable, must be predicated upon those facts ; and in order to obtain the benefit of the supervisory power of the appellate tribunal, the party invoking the same must put the Court in possession of those facts, duly authenticated„ This brings us to the consideration of the question as to what may be deemed a due and proper authentication of the evidence used upon the trial in the Court below.

It seems to have been taken for granted by the counsel who prepared the bill of exceptions, and who superintended the making up of the record for the Court, that it was sufficient if the evidence used or alleged to have been used upon the trial should appear in and form part of the record so certified to by the Clerk of the Circuit Court, without having tbe same incorporated or even referred to in the bill of exceptions.

Such a practice, if sanctioned, would obviously lead to great looseness and uncertainty, and might work irreparable injury to parties litigant; for it would be to substitute the testimony oí tbe Clerk as to what evidence was submitted to tbe jury, for that of the Judge, who, and who alone, (except in the case provided for in the statute, vide Thomp. Dig., 351, Sec. 3,

part 1,) is authorized to attest that matter. Indeed, it is wholly beyond the province of the Clerk, in the exercise of his official duty, to certify to the existence of any matter which is not a matter of record, and it will scarcely be pretended that the evidence given in the trial of a cause is a matter of record until it shall have been made so by being incorporated into a bill of exceptions, duly signed and sealed by tbe Judge, or by three by-standers, as is provided for in the statute. The danger of adopting so loose a practice is forcibly illustrated by an inspection of the record before us.

To several of the interrogatories it appears that exception was taken in writing,■ before the issuing of the commission, but there is nothing in the record to show whether those exceptions were sustained or overruled by tbe Court, and it is therefore left in doubt whether the entire depositions} or only a portion, were used as evidence on the trial.

It was further contended by the counsel for the appellant that tbis case having been brought up by_“ writ of error,’’ it is the province of tlie appellate tribunal to look beyond tbe bill of exceptions, and'to consider any error which might be apparent upon tbe face of the record, and the attention of the Court was called to the fourth plea■, which it was insisted was bad, .

The Court fully recognizes the doctrine, that upon a writ of error it is its province to look beyond the bill of excep» tions and to consider errors apparent upon the face of the record ; but while they recognize the doctrine, they do not think that the error complained of, (even if it is an error,) is snch as would justify a reversal of the judgment. At most the plea, if bad, was so only in presenting an immaterial issue, which did not affect the merits of the cause.

If the plaintiff below was desirous of obtaining the judgment of the Court upon the plea, his proper course of proceeding would have been to have demurred to the same, and this would have raised a question of law, of which he might have availed himself in tills Court;' but by replying to the plea, he waived his demurrer, and consequently lost any benefit which might have otherwise resulted to him. Vide Mitchell vs. Chaires, 2 Fla. R., 18, and Mitchell vs.

Cotten’s Ex’r., ib. 136. '"We are of opinion that as the case is presented to us by the record, there is no error in the judgment of the Court below ; therefore let the judgment he affirmed with costs. Mem. — Upon this case being called, the -Court was presented by the counsel for the appellant with three copies of the record filed in this Court, which were made out and certified to by the Clerk of the Circuit Court. A question was .thereupon raised by the Clerk of this Court as to his right to furnish the copies required by the rule to be furnished to the judges.

The Court decided that the furnishing of the copies is not only a perquisite of his office, but tíiat his certificate is necessary to give authenticity to them.