§ 1746. Jurisdictional facts must appear in the record on a writ of error to the circuit court, or the judgment will be reversed. Capron v. Van Noorden, 2 Cr., 126; Montalet v. Murray, 4 Cr., 47.

§ 1747. Private laws and special proceedings in a state legislature relative to the administration and sale of the estates of deceased persons are facts to be proved in the ordinary manner, and their existence will not be inquired into by the supreme court upon a writ of error if they are not found upon the record. Leland v. Wilkinson, 6 Pet., 322.

SUMMARY

XV. EXCEPTIONS AND BILLS OF EXCEPTIONS.

1. Exceptions.

Exceptions taken on an issue before a jury, § 1748.- Must be taken below, §§ 17491752.- A mere objection to evidence is not sufficient, § 1753.-To instructions, §§ 1754–

1756.

$1748. Where exceptions are taken on the trial of an issue before a jury, but are not acted upon on the chancery side of the court, they will not be considered on appeal; and it is not material that the same judges sat in both courts. Brockett v. Brockett, § 1757, 1758. See § 1806.

§ 1749. Exceptions to a master's report cannot be taken for the first time in the supreme court. Ibid. See § 1770.

§ 1750. Exceptions to the reports of a master and a receiver cannot be made for the first time in the supreme court. Terry v. Commercial Bank of Alabama, §§ 1759, 1760.

§ 1751. A defect in the form of the pleadings, which could be reached by special demurrer,

is cured by the verdict, and an objection cannot be made for the first time in the supreme court. Laber v. Cooper, §§ 1761-1765.

§ 1752. So, also, as to a defect in a verdict. A verdict, unless it is a special one, is always amendable by the notes of the judge. Ibid.

§ 1753. It is not sufficient merely to object to the admission of evidence; an exception must be taken and placed on the record. Ibid. See § 1858.

§ 1754. Error in the charge is not subject to review, unless an exception is taken before the case is submitted to the jury; it is not sufficient to raise the objection on a motion for a new trial. Railway Co. v. Heck, §§ 1766, 1767. See § 1852.

§ 1755. Exceptions to instructions, to be entitled to consideration, must be specific, and

must point out the error complained of. Railroad Co. v. Varnell, § 1768.

§ 1756. Where the charge of the judge is of a character to mislead the jury, the error is one of law, and may be corrected in an appellate court; but in every such case the part of the charge to which exception is addressed ought to be distinctly pointed out. Ibid. [NOTES.- See §§ 1769-1879.]

BROCKETT v. BROCKETT.

(3 Howard, 691, 692. 1844.)

Opinion by MR. JUSTICE MCLEAN.

STATEMENT OF FACTS.-This is a bill in chancery, brought here by an appeal from the circuit court of the District of Columbia.

The complainants filed their bill, alleging themselves to be the legitimate heirs of Robert Brockett, deceased, and claiming as such one-half of the real and personal property of which he died seized and possessed. The defendants filed their answers, denying the allegations of the bill. An issue at law was directed to try the legitimacy of the complainants, and, after hearing the evidence, the jury found a verdict in their favor. Several exceptions were taken to the rulings of the court, in the admission of evidence to the jury, and to the refusal of the court to admit evidence offered by the defendants, which appear in two bills of exceptions. And these decisions, in relation to the trial of the issue, constitute the principal ground of controversy in the case.

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§ 1757. Where exceptions are taken on the trial of an issue at law, but not acted upon in the chancery court, they will not be considered on appeal. (a)

It does not appear that any questions were raised on the chancery side of the court, growing out of these exceptions. And this not having been done, it is proper to inquire whether the exceptions can be considered in this court. It is contended that as the same judges sat in the court of law as in the court of chancery, it could not be necessary to bring before them as chancellors what they had decided in a court of law. Had the court of law been held by different persons from those who sat as chancellors, it is admitted that it would have been necessary to bring before the latter the points ruled in the trial of the issue. But is not the principle the same in both cases? The capacities in which the same tribunal acts on such occasions are as distinct as if the same duties had been performed by different tribunals. The distinction is the same as where a judgment at law is entered by a court which also exercises chancery powers; and which powers are invoked against its own judgment. In such a case it might as well be said, as in the present one, why may not the same court, whether acting at law or in chancery, having possession of the cause, finally decide it? The bills of exceptions are copied into the record; but they do not properly constitute a part of it, as they were not brought to the notice and decision of the court sitting in chancery. An issue in part is directed by a court of chancery to inform its conscience. To bring the fact or facts before the jury at law, a feigned issue is made by pleadings, as at law; and if the proceedings of the jury be unsatisfactory to the court of chancery, either on account of the admission of incompetent evidence, the exclusion of evidence which is competent, or by a mistake of the facts by the jury, the court of chancery will order another trial of the issue. By the consent of parties these issues are sometimes tried without the formality of pleading. where objections exist to the verdict, they must be brought before the court of chancery which ordered the issue. And where this is not done in an inferior court, the objections cannot be taken in the appellate court of chancery. It is a general rule of practice, that no point arising on the pleadings or evidence in an appellate court shall be made which was not brought to the notice of the inferior court. And we think, in this case, that the exceptions taken on the trial of the issue at law, not having been acted on by the court of chancery below, cannot be insisted on in this court.

§ 1758. Exceptions to a master's report must be taken in the lower court.

cases

Being satisfied of the legitimacy and consequent heirship of the complainants from the verdict of the jury, the court below referred to a master the rents received by the defendants, and other matters of account pertaining to the estate. And to some of the items allowed by the master objections are made before this court. But it does not appear that these objections were brought before the lower court by exceptions to the master's report. The

(a) A bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity, or, if taken, can only be used on a motion for a new trial made to said court. 2 Dan. Ch. Pr. (3d Am. ed.), 1106; Armstrong v. Armstrong, 3 Myl. & K., 52; Ex parte Story, 12 Pet., 343; 3 Graham & Waterman on New Trials, 1553. The issue is directed to be tried for the purpose of informing the conscience of the chancellor, and aiding him to come to a proper conclusion. If he thinks the trial has not been a fair one, or for any other reason desires a new trial, it is in his discretion to order it. But he may proceed with the cause though dissatisfied with the verdict, and make a decree contrary thereto, if in his judgment the law and the evidence so requires. A decree in equity, therefore, when appealed from, does not stand or fall according to the legality or illegality of the proceedings on the trial of a feigned issue in the cause; for the verdict may or may not have been the ground of the decree. It is the duty of the court of first instance to decide upon the whole case, pleadings, evidence, and verdict, giving to the latter so much effect as it is worth. An appeal from the decree must be decided in the same way, namely, upon the whole case, and cannot be made to turn on the correctness or incorrectness of the judge's rulings at the trial of the feigned issue. Johnson v. Harmon,* 4 Otto, 370.

seventy-third chancery rule is decisive on this subject. It provides that "the parties shall have one month from the time of filing the master's report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month is expired." No exceptions having been filed in the circuit court to the report of the master, none can be heard in this court.

The verdict and the report of the master, which constituted the basis of the decree of the court below, not having been objected to in that court, cannot be objected to here, and consequently the decree of the circuit court is affirmed, with costs.

TERRY v. COMMERCIAL BANK OF ALABAMA.

(2 Otto, 454-456. 1875.)

APPEAL from U. S. Circuit Court, Southern District of Alabama.
Opinion by MR. JUSTICE MILLER.

STATEMENT OF FACTS.-The defendant, the Commercial Bank of Alabama, was a banking corporation organized under the laws of that state, and had become insolvent. The appellant, a citizen of the state of South Carolina, brought a suit in the district court for the middle district of Alabama, at that time exercising circuit court powers, to wind up the bank under the provisions of the twenty-first section of its charter. Plaintiff alleged and proved that he was the owner of about $3,000 of the notes of the bank, on which he had demanded payment, and been refused. The bank admitted its insolvency; and a receiver was appointed by consent to wind up its affairs, and publication made for all creditors to come in and prove their claims. The receiver made his report, which was referred to a master, who also reported. These reports, and several supplemental reports, were all confirmed without exceptions, and a final order of distribution made among those who had proved their claims, allowing first the costs of the proceeding, including attorney's fees and other costs of suit. All of these were referred to a master, who reported, antl to whose report no exceptions were taken. After all this was done, the appellant here and plaintiff below appeared in person, and filed numerous petitions and affidavits signed by himself, excepting to the decree, asking to set it aside, excepting to the reports, and suggesting many other matters and things in which he sought to modify or correct the decree. The foundation of all this seems to be the charge that his counsel deserted his interest, failed to except to the reports and consented to the decree because they received what he called an exorbitant allowance for their services out of the fund which should have gone to the creditors of the bank, thereby diminishing the amount of his dividend.

1759. Exceptions to the reports of a receiver and a master must be made below.

As to all this, it is sufficient to say that these motions cannot be considered here. They are mainly addressed to the discretion of the court, coming as they do after a final decree on the merits. If appellant desired to place the case in a position where this court could review the action of the court on that class of questions, he should have filed his bill of review and made the proper issues and supported it by depositions. As it now stands, his motions are unsupported by anything but his own affidavit. So as to the errors alleged in the master's reports. There were no exceptions filed to these reports until after they were confirmed and a final order of distribution made. This court cannot review those reports on exceptions taken after that, and urged upon

us now on appeal. If, as appellant alleges, he has been defrauded by his counsel, he must sue them for what he has lost by the fraud. If he desire to set aside the decree because it was obtained by fraud, his remedy is by bill of review.

§ 1760. A decree discharging stockholders in insolvent proceedings, without their being parties to the proceeding, is erroneous.

But he complains of one error in the decree which is shown on the face of the proceedings, and as to which he is, we think, entitled to have it reversed. It appears that the creditors of the bank have not been paid the full amount of their claims, as allowed by the master and confirmed by the court. By the law of the charter, the stockholders are liable to be called on for contribution to make up this deficit. They have not been made parties to this proceeding. No rule or process has been served on them, nor any motion or petition or prayer filed to subject them to liability. The decree, however, orders "that the said Commercial Bank of Alabama, its officers and stockholders, be, and they are hereby, forever discharged from any and all liability for or on account of any debt or demand of whatsoever nature, now or hereafter, subsisting against the bank and officers or stockholders of the same." We see nothing in the proceedings to authorize the part of the decree which relates to the stockholders. Their liability has not been put in issue by any pleading, notice or paper in the cause; and while, under these circumstances, this part of the decree may be void for that reason, we still think appellant has the right to have it removed out of the way of his proceeding against these shareholders, if he should desire to do so.

The decree of the district court is affirmed as to all but this part of it, and the case is remanded to the circuit court for the southern district of Alabama, to which, by law, it has been transferred, with directions to modify the decree in that respect, as indicated in this opinion; and, when so modified, the decree is affirmed, appellant to recover costs of appeal.

LABER v. COOPER.

(7 Wallace, 565-571. 1868.)

ERROR to U. S. Circuit Court, Northern District of Illinois.

§ 1761. Unnecessary matter in bill of exceptions a violation of fourth rule. Opinion by MR. JUSTICE SWAYNE.

In this case the bill of exceptions furnishes the same ground of complaint. which was remarked upon in Lincoln v. Claflin, 7 Wall., 132, heretofore decided at this term. In the case before us it fills an hundred and twenty-seven printed pages. The points arising for our consideration could have been better presented in a very small part of this space. Such a mass of unnecessary matter has a tendency to involve what is really important in obscurity and confusion. Its presence is a violation of the fourth rule of this court. Its examination consumes our time, increases our labor, and can subserve no useful purpose. The subject was so fully considered in the case referred to that we deem it unnecessary to pursue it further upon this occasion.

STATEMENT OF FACTS.- Winnowing away the chaff, we find the questions left for our examination neither numerous nor difficult of solution. The declaration contains two counts upon a promissory note, made by Laber to the Racine & Milwaukee Railroad Company, or order, for $3,700, dated the

6th of May, 1856, payable five years from the 10th of May in that year, with interest at the rate of ten per cent. per annum, payable annually on the 10th of May; principal and interest payable at the office of the company, in the city of Racine, in the state of Wisconsin, and indorsed by the payee, by H. S. Durand, its president, to the plaintiff. The declaration contains also the common counts. The defendant pleaded the general issue and three special pleas. The first special plea avers that the note, and a mortgage securing its payment, were given to the railroad company for thirty-seven shares of its capital stock; that there was no consideration for the note; that it was obtained from the defendant by false and fraudulent representations; and that these facts were known to the plaintiff when the note came into his possession. The second special plea denies the indorsement of the note to the plaintiff, as averred in the first count. The third special plea is to the same effect as to the indorsement averred in the second count. All the special pleas conclude with a verification. To the first of the special pleas the plaintiff replied, denying knowledge of the alleged false and fraudulent representations, before and at the time of the indorsement and transfer of the note. To the second and third special pleas no replications were filed. The cause proceeded to trial. The record shows that a large mass of testimony was given by the defendant relating to both the defenses set up by the special pleas. A prayer for instructions was submitted by the defendant. The court refused to give them, but charged the jury fully upon the whole case. Both the subjects presented by the special pleas were fully discussed. Indeed they were the only grounds of the controversy between the parties. The case was tried in all respects as if the pleadings had been formal and perfect. The jury found for the plaintiff. The language of the verdict is: "We, the jury, find the issue for the plaintiff, and assess his damages," etc. The defendant moved for a new trial. The motion was overruled, and judgment entered upon the verdict. The defendant excepted to the refusal to charge as prayed, to twelve passages in the charge as given, and to the overruling of his motion for a new trial.

$1761a. Objections for want of form in pleadings must be made in the court below.

1. It is objected as an error that no replication was put in to the pleas denying the indorsement of the note. The plea of the general issue would have made it incumbent upon the plaintiff to prove the indorsement as averred in the declaration, but that the statute of Illinois adopted by the circuit court as a rule of practice dispenses with such proof, unless the fact is denied by the defendant under oath. The oath of the defendant was affixed to both the pleas raising the question. As they only denied what the plaintiff had alleged, contained no new matter and no special traverse, they should have concluded to the country, and not to the court. The defect was one of form, and could have been reached by a special demurrer. The trial proceeded as if they had concluded to the country and a similiter had been added by the plaintiff. To the objection now taken there are several answers. The irregularity is cured by the trial and verdict. Coan v. Whitmore, 12 Johns., 353; Brazzel & Hawkins v. Usher, Breese, 14; Stone v. Van Curler, 2 Vt., 115; Sullivan v. Dollins, 13 Ill., 88; Coutch et al. v. Barton, 1 Morris, 354. The objection comes too late; not having been made in the court below, it cannot be made here. It is within the thirty-second section of the judiciary act of 1789, which forbids a judgment to be reversed for any want of form in the proceedings, except such as shall have been specially pointed out by demurrer.