long as that judgment was unreversed we are nevertheless confronted with the inquiry whether it should be given that effect when it is shown by a duly certified copy of the opinion of the Supreme Court of South Dakota that the judgment in question has been vacated and annulled for error. As a general proposition, it is doubtless true that an appellate court is required to determine whether a judgment which is challenged by a writ of error is erroneous upon the facts disclosed by the record, and upon the facts as they existed when the judgment was rendered. But, inasmuch as all rules of procedure are intended to secure the administration of justice in an orderly manner, it does not seem reasonable that a rule of procedure should be observed when it is apparent that a strict adherence thereto will work an injustice. When an appellate court has the power to vacate a judgment rendered by a nisi prius court, over whose proceedings it exercises supervision and control, and its attention is called in an authentic manner to something that has transpired since the trial, which renders it inequitable to permit the judgment to be carried into effect, we think that it may lawfully exercise its power to annul the judgment and remit the record to the lower court for such further proceedings as may be necessary. It is essential, of course, that there should be a general observance of rules of procedure, but compliance with a particular rule ought not to be required when a literal compliance therewith would defeat, rather than promote, the real ends of justice. As a general proposition, the rights of the parties to a suit are to be determined upon the facts as they exist when the action is commenced, or at least when the issues have been formulated by pleadings. Nevertheless, the common law has always permitted a defendant to take advantage of a defense growing out of what subsequently transpires by a plea puis darrein continuance. Andrews, Steph. Pl. par. 77, Chit. Pl. (16th Am. Ed.), pp. 689, 690. In the state of New York, where the doctrine prevails that the taking of an appeal from a judgment does not prevent the judgment from being pleaded, in bar to another action between the same parties, it is held that if, after a judgment has been successfully pleaded in the second suit, it is reversed on appeal, the judgment in the second action may be set aside by the trial court for that reason, although no error was committed on the trial. Parkhurst v. Berdell, 110 N. Y. 386. In the case of Humphreys v. Leggett, 9 How. (U. S.) 297 (see also Leggett v. Humphreys, 21 How. (U. S.) 66), the facts appear to have been that, while a writ of error was pending in the Supreme Court of the United States to reverse a judgment in favor of a surety on a sheriff's bond, the whole penalty of the bond was collected of the surety under a judgment regularly obtained in a state court. The Supreme Court of the United States reversed the judgment in favor of the surety, and sent down its mandate directing the entry of a judgment against the surety for a specified sum. The surety thereupon pleaded puis darrein continuance the payment of the full penalty of the bond in obedience to the judgment of the state court, but the trial court disallowed the plea, and entered judgment according to the mandate.

The surety then filed a bill to restrain the enforcement of the latter judgment, and it was held that he was entitled to the relief prayed for, inasmuch as the surety had been guilty of no laches, and it would be inequitable to permit an amount in excess of the penalty of the bond to be collected from him. Under the doctrine enunciated in that case it would seem that, if this court should affirm the judgment below on the ground that it can not take cognizance of the recent decision of the Supreme Court of the state of South Dakota, equitable relief might be afforded against the judgment. But, even if such relief might be obtained, why should this court affirm the judgment, and compel the institution of a new suit, when it is advised in an authentic manner that the judgment which served to prevent the plaintiff from recovering below was an erroneous judgment, and that the same has been finally vacated and annulled? The trial court could have granted a new trial because of the reversal of the judgment, although its record disclosed no error, and it seems reasonable that this court should exercise a similar discretionary power so long as it retains control over the judgment, and a fact has been brought to its attention concerning which there can be no dispute. We can not say that the existing complications are due to any fault or laches of the plaintiff in error. When he brought the action he was doubtless advised by counsel that the judgment in the mandamus case could not be pleaded in bar, in view of the appeal therefrom and the provisions of the Dakota statute. The construction that had been placed on that statute by the courts of California give great weight to this view, and, while we are constrained to hold that the view was erroneous, yet we are not prepared to decide that the plaintiff should be compelled to sustain a great loss because he has been guilty of no other fault than the bringing of an action based upon a mistaken view of the law. The trial court might have continued the case in hand of its own motion until the mandamus case was decided, and we think that such action ought to have been taken. That course, however, was not pursued, and it is the duty of this court, which still retains control of the judgment to take such action as will shorten the litigation, preserve the rights of both parties, and best subserve the end of justice. In view of what has been said, we conclude that we have the power and that it is our duty to reverse the judgment below, and remand the cause for a new trial. The judgment in the mandamus case has been reversed, and the cause remanded for a new trial, and, if this court makes a similar order, it will be optional with the plaintiff to prosecute either one of the suits and dismiss the other, and by so doing avoid further complications growing out of the pendency of suits upon the same cause of action in two courts of coördinate jurisdiction. The judgment below is therefore reversed, and the cause remanded for a new trial.41

41

"At common law a writ of error was no bar to an action based on the judgment. Y. B. 4 Hen. VI 31; Y. B. 18 Edw. 14, 6; Anon., Dyer, 32, pl. 5; Adams v. Tomlinson, 1 T. Raym. 100, 1 Sid. 236 (1676); Dighton v. Granvil, 4 Mod. 247 (1694); Anonymous, 11 Mod. 78 (1707); Donford v. Ellys, 12

54-CIV. PROC.

SECTION 4. EXCEPTIONS AND RECORD

STAT. WESTM. II, CH. 31

13 Edw. I (1285)

When one that is impleaded before any of the justices doth allege an exception, praying that the justices will allow it, which if they will not follow, if he that alleged the exception do write the same exception, and require that the justices will put their seals for a witness, the justices shall so do; and if one will not, another of the company shall. And if the King, upon complaint made of the justices, cause the record to come before him, and the same exception be not found in the roll, and the plaintiff show the exception written, with the seal of a justice put thereto, the justice shall be commanded that he appear at a certain day, either to confess or deny his seal, and if the justice can not deny his seal, they shall proceed to judgment according to the same exception, as it ought to be allowed or disallowed.42

WRIGHT v. SHARP

COURT OF QUEEN'S BENCH, 1708

I Salk. 288

A corporation book was offered in evidence at the assizes to prove a member of the corporation not in possession, and refused. No bill of exceptions was then tendered, nor were the exceptions reduced to writing; so the trial proceeded, and a verdict was given

Mod. 138 (1698). But it was sometimes allowed to be pleaded in abatement. Rogers v. Mayhoe, Carth. 1 (1687); Aby v. Buxton, Carth. 1 (1687); Prinn v. Edwards, 1 Ld. Raym. 47, 3 Salk. 145 (1696). Contra: Rottenhoffer v. Lenthall, Carth. 136 (1691); Goodwin v. Goodwin, 20 Viner's Abr. 69 (1712). And, by the later practice, the court under some circumstances stayed the second action until the writ of error was determined. Taswell v. Stone, 4 Burr. 2454 (1769); Gribble v. Abbot, 1 Cowp. 72 (1774); Entwistle v. Shepherd, 2 T. R. 78 (1787); Pool v. Charnock, 3 T. R. 79 (1789); Smith v. Shepherd, 5 T. R. 9 (1792;) Bicknell v. Longstaffe, 6 T. R. 455 (1795); Abraham v. Pugh, 5 B. & Ald. 903 (1822); Jenkins v. Pepoom, 2 Johns. Cas. (N. Y.) 312 (1801); Planters' Bank v. Calvit, 3 Sm. & M. (Miss.) 143, 41 Am. Dec. 616 (1844); Hailman v. Buckmaster, 8 Ill. 408 (1846); Taylor v. Shew, 39 Cal. 536, 2 Am. Rep. 478 (1870); U. S. Fidelity &c. Co. v. Jones, 33 Ky. L. 737, III S. W. 208 (1908); First Nat. Bank of Frederick, Wis., v. McIlvaine, 32 S. Dak. 177, 142 N. W. 468 (1913). Compare: Atkins v. Wyman, 45 Maine 399 (1858).

"Bacon's Abridgment, "Bill of Exceptions"; 2 Co. Inst. 426; 3 Bl. Comm. 372; Buller's N. P. 316. Under the statute if the judge at the trial, mistake the law, the counsel on either side may require him to seal a bill of exceptions. It must, however, be upon some point of law, such as admitting or refusing evidence, or a challenge, or upon some question of law arising during a trial, in which either party is overruled by the court. Arch. Pr. (7th ed.) 311; Elliott's Appellate Procedure, § 797; 2 Tidd's Practice (9th ed.) 862.

for the plaintiff. Next term the court was moved for a bill of exceptions, and it was stirred and debated in court. It was urged, that the law requires quod proponat exceptionem suam, and no time is appointed for reducing it into writing, and the party is not grieved till a verdict be given against him; and the same memory that serves the judges for a new trial will serve for bills of exceptions. Vide 2 Inst. 437. N. B. 21, 540 b. Vet. Intr. 96, 136. Raymond 405. Brownl. Red. 433. 2 Lev. 236. Stat. Westm. II, ch. 31. On the other side it was said, that this practice would prove a great difficulty to judges, and delay of justice; that the precedents and entries suppose the exception to be written down upon its being disallowed, and the statute ought to be construed so as to prevent inconvenience; besides, the words of the act are in the present tense, and so is the writ formed on the act.

HOLT, C. J. If this practice should prevail, the judge would be in a strange condition; he forgets the exception, and refuses to sign the bill, so an action must be brought; you should have insisted on your exception at the trial; you waive it if you acquiesce, and shall not resort back to your exception after a verdict against you, when perhaps, if you had stood upon your exception, the party had other evidence, and need not have put the cause on this point; the statute indeed appoints no time, but the nature and reason of the things require the exception should be reduced to writing when taken and disallowed, like a special verdict, or a demurrer to evidence not that they need to be drawn up in form; but the substance must be reduced to writing while the thing is transacting, because it is to become a record; so the motion was denied.43

13The exception must be asked for at the time the alleged erroneous ruling is made. Guillou v. Redfield, 205 Pa. 293, 54 Atl. 886 (1903); Richards v. Appely, 187 Mass. 521, 73 N. E. 555 (1905); Graves v. Hicks, 194 Mass. 524, 80 N. E. 605 (1907). The common law required, also, that the bill be presented signed and sealed at that time, but for the convenience of bench and bar, modern statutes and rules permit the bill to be formally drawn up and settled after the trial within a prescribed time. Hake v. Strubel, 121 Ill. 321, 12 N. E. 676 (1887); Stewart v. Huntington Bank, 11 Serg. & R. (Pa.) 267, 14 Am. Dec. 628 (1824); Ex parte Bradstreet, 4 Pet. (U. S.) 102, 7 L. ed. 796 (1830); Law v. Merrills, 6 Wend. (N. Y.) 268 (1830); Wilson v. Moore, 19 N. J. L. 186 (1842); Elwell v. Dizer, 83 Mass. (I Allen.) 484 (1861): State v. Holmes, 36 N. J. L. 62 (1892); Ex parte Nelson, 62 Ala. 376 (1878) Haines v. Commonwealth, 99 Pa. St. 410 (1882); Martin v. Foulke, 114 Ill. 206, 29 N. E. 683 (1885); Che Gong v. Stearns, 16 Ore. 219, 17 Pac. 871 (1888); Commonwealth v. Arnold, 161 Pa. St. 320, 29 Atl. 270 (1891); Hancher v. Stephenson, 147 Ind. 498, 46 N. E. 916 (1896); Schlessinger v. Cook, 8 Wyo. 484, 58 Pac. 757 (1899); Trager v. Webster, 174 Mass. 580, 55 N. E. 318 (1899); Watson v. Milford, 72 Conn. 561 (1900); Gamache v. Budd, 129 Cal. 554, 62 Pac. 105 (1900); Enck v. Gerding, 63 Ohio St. 175, 57 N. E. 1083 (1900); Goff v. Britton, 182 Mass. 293, 65 N. E. 379 (1902); Gartman v. Union Tr. Co., 13 Pa. Dist. R. 210 (1904); Jennings v. P. B. & W. R. Co., 218 U. S. 255, 54 L. ed. 1031 (1910); Pace v. Volk, 85 Ohio St. 413 (1912); Dalton v. Dalton, 146 Ky. 18, 141 S. W. 371 (1911); Sieling v. Brunner, 117 Md. 682, 83 Atl. 1032 (1912); Alward v. Harper, 253 Ill. 294, 97 N. E. 653 (1912); Wyss-Thalman v. Maryland Casualty Co., 193 Fed. 53 (1911); Lupton v. Underwood, 26 Del. 519, 85 Atl. 965 (1912); Moore v. Harrison, 114 Va. 424, 76 S. E. 920 (1912); Kramm v. Stockton E. R. Co., 22 Cal. App. 737, 136 Pac. 523 (1913); Davis v. Cress, 214 Mass. 379, 101 N. E. 1081 (1913);

LEES v. UNITED STATES

SUPREME COURT OF THE UNITED STATES, 1893

150 U. S. 476

On August 22, 1888, the United States commenced this action. in the District Court of the United States for the Eastern District of Pennsylvania to recover of Joseph Lees and John S. Lees, the present plaintiffs in error, the sum of one thousand dollars, as a forfeit and penalty for a violation by them of the Act of Congress of February 26, 1885, entitled "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia." 23 Stat. 332, ch. 164. Proceedings were thereafter had in that suit which resulted in a judgment, on February 23, 1889, in favor of the United States, for the sum of one thousand dollars. This judgment was affirmed by the circuit court of that district, and has since, by writ of error, been brought to this court for review.

BREWER, J.: A third allegation of error is that the court compelled one of the defendants to become a witness for the government, and furnish evidence against himself. The bill of exceptions reads as follows:

"John S. Lee sworn.

"Mr. Fenton: John S. Lee, the witness called, is one of the defendants. This is a proceeding in the nature of a criminal proceeding. I object to his being examined on behalf of the plaintiff, because he is protected by statute.

"(Objection overruled. Exception for defendant.)"

This, though an action civil in form is unquestionably criminal in its nature, and in such a case a defendant can not be compelled to be a witness against himself. It is unnecessary to do more than to refer to the case of Boyd v. United States, 116 U. S. 616. The question was fully and elaborately considered by Mr. Justice Bradley in the opinion delivered in that case. And within the rule there laid down it was error to compel this defendant to give testimony in behalf of the government.

Not questioning that such is the scope and effect of the decision in Boyd v. United States, counsel for the government insists that the objection is not properly preserved in the record, and, therefore, not open for our consideration. A single bill of exceptions was prepared to bring on to the record all the proceedings of the trial. It gives all the testimony, the various objections and rulings Ottumwa Bridge Co. v. Corrigan, 251 Mo. 667, 158 S. W. 39 (1913); Boyd v. Kellog, 121 Md. 42, 88 Atl. 30 (1913); State ex rel. Bisseberg v. Olson, 124 Minn. 537, 144 N. W. 755 (1914); Breen v. Kennedy, 158 Wis. 48, 147 N. W. 996 (1914); Robertson v. Cockrell, 209 Fed. 843 (1914).

Where the trial is by the court, see Hunt v. Bloomer, 13 N. Y. 341, 12 How. Pr. (N. Y.) 567 (1856).

"The arguments of counsel and part of the opinion of the court are omitted.