# York and Cumberland Railroad Company v. Myers

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United States Supreme Court
59 U.S. 246
York and Cumberland Railroad Company v. Myers
THIS case was brought up by writ of error from the circuit court of the United States for the District of Maine.
The case is stated in the opinion of the court.
It was argued by Mr. Clifford and Mr. Shepley, for the plaintiffs in error, and Mr. Francis O. J. Smith, for defendant.
With respect to the point that the bill of exceptions was well taken in this case, the counsel for the plaintiff in error laid down the following propositions:--
1. That the bill of exceptions in this case is within the intent if not within the very letter of the statute; and therefore it is insisted that the legal questions herein presented are regularly within the revisory power of this court.
2. That if it is not strictly speaking a bill of exceptions, it is at least 'an exception in the nature of a bill of exceptions,' and therefore it is insisted that the legal questions are examinable on a writ of error.
3. That the rulings and determination of the circuit court, presented for revision are apparent in the record, inasmuch as they are incorporated into the record of the judgment together with the facts on which they were applied under the hand and seal of the circuit judge, and therefore it is insisted that the writ of error well lies.
In support of the first proposition, they cited and commented on 4 Bing. (N. C.) 83, (33 C. L. 283;) 6 Pet. 655; Co. Litt. 288 b; 1 Arch. Prac. 530; 1 Bac. Abr. 529; 17 How. 6; 1 Halsted, 388; 7 Johns. 494.
In support of the second: 16 Pet. 176; 7 How. 855, 866.
In support of the third: 7 Cranch, 596; 2 How. 394; 10 Ibid. 190, 329; 17 Ibid. 12; 4 Pet. 206.
They then referred to the course of proceeding in Maine, on awards of referees made under a rule of court, and cited a number of cases in that and other States.
Upon the main point in the case, they laid down the following propositions:--
1. A report or award of referees is wholly void if it includes damages for a matter not embraced in the submission, unless the amount improperly included can be ascertained and separated from the residue of the sum awarded. 5 Wheat. 394, and other cases.
2. Damages in lieu of the reserved stock, and at a valuation estimated by the referee, were included in the award; and the record affords no means whatever of ascertaining what that valuation was, or of ascertaining the amount so included.
3. No claim for the reserved stock, or for damages for non-delivery thereof, was embraced in the declaration, or sued for in the action; and, as the reference was one of the action merely, no such claim was submitted to the arbitrament of the referee.
These propositions led to a very minute examination of the facts and accounts in the case.
Mr. Smith, for defendant in error, made eleven points; but it is only necessary to state the one upon which the decision of the court rested:--
9. The several causes of complaint in the plaintiffs' bill of exceptions and assignment of errors, are in the nature and of the effect of a motion to set aside the award, and to grant a new trial, or to recommit the report of the referee; and, under the rule of court, are, as such, only fit matters to be addressed to the consideration and discretion of the circuit court to which the report was made returnable, and are not subject-matters for revision by this court, on a writ of error. Opinion of the circuit court of the United States for the district of Maine, annexed; Parsons v. Beford et al. 3 Pet. 445; Wright et al. v. Lessee of Hollingsworth et al. 1 Pet. 168; Cutler v. Grover, 15 Maine R. 159; Walker v. Sanborn, 8 Ibid. 288; Cumberland v. North Yarmouth, 4 Ibid. 459; Whitney v. Cook, 5 Mass. 143; Boardman v. England, 6 Mass. 70; Toland v. Sprague, 12 Pet. 331; Evans v. Phillips, 4 Wheat. 73; Henderson v. Moore, 5 Cranch, 11; Harker v. Ellicott et al. 7 Serg. & R. 285; Zeller's Lessee v. Eckert et al. 4 How. 289.
Mr. Justice CAMPBELL delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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