# United States v. Wilkinson/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
53 U.S. 246
United States v. Wilkinson
In a subsequent case this court censured the practice of excepting generally to a charge of a judge, and declared that it would dismiss the writ of error unless the rulings objected to were specifically pointed out. Stimpson v. West Chester R. R. Co., 4 How., 380; Zeller's Lessee v. Eckert et al., 4 Id., 297.
The principle that the party taking the exception must state the point, and is confined to that alone, is established in the jurisprudence of every state to whose reports we have access. We refer to Bacon's Abridg., vol. 2, p. 113, edition of 1846, and authorities there cited. Also Raymond on Bills of Exceptions, p. 33.
In Louisiana, where the state practice has been adopted in the federal courts, a long and unbroken series of decisions recognizes this principle to its fullest extent. Pratt v. Flower, 2 Mart. (La.), N. S., 333; Balfour v. Chew, 5 Id., 519; Miller v. Breedlove, 1 La., 323; Ohio Ins. Co. v. Edmonson, 5 Id., 301; Holmes v. Holmes, 6 Id., 471; Keene v. Relf, 11 Id., 309; Hennen v. Wetzel, 12 Id., 265. In the case last cited the bill of exceptions was taken to the offering in evidence of a promissory note, the ground being stated in the bill to be 'a very material variance between the note offered in evidence and that described in petition.' The court refused to examine the bill of exceptions because it did not set forth in what the variance consisted, although both the note and petition were copied into the transcript.
The counsel for the defendants in error also referred to the following authorities: Kensington v. Inglis, 8 East, 280; Carroll v. Peake, 1 Pet., 21; 4 Phillips on Ev., edition of 1850, with notes by Cowen and Hill and Vancott, p. 778, where all the authorities are collected.
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:
v.
Wilkinson et als.
v.
J. B. WILKINSON et al.
No. 1727.
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.
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 the 8th of 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. There is nothing in the record from which it can be inferred that a suit was pending between the same parties on the 8th of 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 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.
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.

## Notes

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