2 Ark. 14
Ark.
1839
Lacy, Judge,

In inspecting the transcript of the record sent up to this court, we find a paper appended to it, which purports to be a statement of the testimony given on the part of the plaintiffs in the case of Albert Pike and wife and O. H. Smith and wife, against John H. Lennox, in an action of detinue.

This statement details the evidence of Terrence Farrelly and Frederick Notrebo, and is signed by E. L. Johnson, Judge, and is marked filed October 12th, 1838, G. W. Stokes, Clerk.

The assignment of errors questions the correctness of the opinion of the court below, in overruling the defendant’s motion for a new trial, and in rendering judgment in favor of the plaintiffs. Before we proceed to examine and discuss the question raised by the assignment of errors, it becomes necessary to determine whether the paper purporting to be a statement of the testimony in the case, signed by the judge and marked filed by the clerk, constitutes a part of the record or not.

In disposing of this preliminary question, we will consider in (he first place what constitutes a court, and what a judicial record. A court is defined to be a place where justice is judicially administered. In all courts or judicial tribunals, the sovereign power of the government in contemplation of law, is always presumed to he present, and that sovereignty is represented by the judges, or other properly constituted legal officers, whose authority is only an emanation of the sovereign will.' 3 Blackstone Commentaries 24, Co. Litt. 260. A court of record is where the acts and judicial proceedings are enrolled in parchment or on paper for a particular memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth isnot to be called in question. For it is a settled maxim, that nothing shall be averred against a record, nor shall any plea or proof he admitted to contradict it. if the existence , of the record be doubled or denied, that fact shall be tried by nothing but the record itself, that is upon bare inspection whether there be any such record or no, else there would be no end of disputes. 2 Tidd 850; Starkie on Evidence 72.

Whatever proceedings or facts the law or the practice of the courts requires to be enrolled, constitute and form a part of the record. Such, for instance, are all judicial writs and process, finding of the jury, and the judgment of the court, and the like. Whatever else that is not necessary enrolled, such, for example, as oral and written testimony, and exceptions taken to the opinion and judgment of the court, constitutes no part of the record, unless they are expressly made so by order of the court, by the agreement of the parties, by demurrer to evidence, by oyer, by bill of exceptions, or by special verdict. These are the usual and only legitimate modes by which matters of fact may be spread upon the record. Cole v. Driskell, 1st Blackf. 16; Gist v. Higgins, 1st Bibb 304.

The question then is, does the paper found among the files of the clerk, which purports to detail the evidence in the cause, and which is signed by the judge, constitute any part of the roll or record of the court? It certainly does not, for being merely a statement of testimony, it. is never regarded by law, or the practice of the courts, to be necessarily enrolled; There is no order of the court directing it to be spread upon the record, nor is there any agreement of the parties placing it there; and surely it cannot be pretended that it is put upon the rolls, by oyer, special' verdict, demurrer to evidence, or bill of exception; then it can only be regarded as a mere loose paper on the files of the clerk, or the memorandum of the judge of his notes on trial. It is appended to the transcript of the record sent up, and immediately follows the bill of exceptions that was taken upon the trial; and which by express order of the court was made part of the record. It is signed, not sealed, by the judge, and whether it contains all or any part of the testimony given on the trial, we cannot judicially know; for being no part of the record, we are not authorized to look into it, nor can a writ of error reach it. If a party wishes to avail himself-of any matter upon error that does not necessarily appear of record, he must file exceptions at the trial, or request a special verdict. In McFaddin and others v. Otis, 6 Mass. 323, the defendant moved for a new trial, upon the ground of the instructions of the court being against law, and requested the judge to report the evidence imd the instructions. The report was made, and after an opinion was intimated against the new trial by the Supreme Court of Massachusetts, the counsel for the defendant stated that the defence rested upon the embargo laws passed by Congress, as appears by the Judge’s report; and he was instructed if judgment against his client, to • move the cause by writ of error into the Supreme Court of the United States.

It was then observed to him by the court, that the report of the judge was not made part of the record, and as the defence was only apparent from the report of the judge, he could have no relief by error to the Supreme Court of the United States; and that if he had contemplated a writ of error, he ought to have filed a bill of exceptions, or requested a special verdict. The rule here laid down is conclusive upon the point now before the court, and the case in which it was stated is every way stronger than the one now under consideration. In the case above referred to, the report contained the defence and the instructions of the judges, and still it was held that the report is part of the record.

There is only a loose memorandum of a judge containing the notes of the testimony, and nothing more. In the case of Coolidge v. Inglee, 13 Mass. 50, the court held this language: “ The report of the. judge is not a part of the record, nor are reasons given for the final opinion of the court, nor the papers or documents filed in the case.” In no possible aspect, then, can this statement of the testimony be considered as any part of the record; but even admitting it to be a bill of exceptions, which it certainly is not, still it would be excluded from our consideration, for it does not appear to have been taken during the trial, or upon any motion made in the court below. The object of a bill of exceptions is two-fold. First, it is to object to the opinion of the court on some point of law, and refers generally to the competency of witnesses, the admissibility of evidence, or the legal effect of it, and the like; and secondly, it is to reduce to writing and incorporate on the record, the substance of the transaction on which the opinion of the court is found, so that the court alone, when called on to revise the decision given, may be able to see and correct the error, if any exists. In Evans vs. Pope, and Gray vs. Nations, it was decided by this court that bills of exceptions were only allowable, during the trial, and that facts must appear on the face of the exceptions, if afterwards they are reduced to.form and signed. They must appear to have been taken and signed at the trial. Law vs. Merrills, 6 Wend. 278; Walton vs. U. States, 9 Wheat. 651; Exparte Bradshaw, 4 Peters 107; 2 Tidd. Practice, 912.

The bill of exceptions which is made part of the record, calls in question the opinion of the court below, in refusing to set aside the verdict, and in not awarding a now trial. It is contended on behalf of the plaintiffs in error, that the Circuit Court erred in oyerruling the motion for a new trial, as the verdict and judgment on the case was contrary to law and evidence. It is a well settled principle, and one fully established by all the authorities, that he who impeaches the judgment of an inferior court, is hound to show to a superior tribunal in what the error consists of which he complains. He must be able to lay his finger upon the error, and point it out, if he seeks to review or correct it.

The reason of the rule rests alone upon the presumption, that the judgment below was right; and that presumption is strengthened and fortified by the universally admitted principle in all correct reasoning, that he who holds the affirmative of any proposition, is hound to prove it.

Hence it has been so repeatedly ruled in this court, that every thing will he presumed in favor of the verdict and judgment of the court below, except what is affirmatively disproved by the record, or what this court is hound judicially to take notice of.

By applying this principle to the case now under consideration, we will readily perceive how the matter stands. There is hut one. bill of exceptions filed in the case, and that contains no part of the evidence adduced upon the trial; neither does the record disclose in any part of it, what testimony was given or refused upon the hearing of the cause. It is wholly impossible, then, for this court to know how or in what manner the plaintiffs claimed title to the property in question, or what was the nature and character of the defence set up in bar of their right of recovery. Belli the record and bill of exceptions being wholly silent on these points. We are then necessarily compelled to resort to the legal presumptions that arise in the case, and which, of course, arc binding and conclusive upon this court. We are then bound to presume, that the plaintiffs established their right to the property in dispute, by competent and satisfactory evidence, or the jury would not have rendered a verdict in their favor. Without such proof, the jury had no right to find a verdict against the defendants, or the court to pronounce judgment upon their finding; whether the facts or circumstances of the case did in reality warrant the jury in coming to such conclusion, we have no means of knowing, but that is the legal presumption, which, in the absence of all opposing or contradictory testimony on the subject, we are bound to respect and obey. The presumption stands in lieu of full and conclusive proof on the point, and in legal contemplation, is in every way equal to -it. The declaration in this case is correctly drawn, and contains on its face a good cause of action; the plea and joinder are regularly filed and every way sufficient, and make up a valid issue between the parties; the verdict is a response to that issue, and is strictly formal, perfectly legal.

It finds the slaves in the delaration mentioned, lo be the property of the plaintiffs, and it affixes their value severally and respectively. It also finds their detention by the defendants, and awards a certain amount of damages for the same. No valid objection then can be taken to the finding of the jury, for their verdict is in accordance with the most approved forms and precedents in such cases. 11 Co. 109; Cornwell vs. Truss, 2 Munf. 195; Gordon vs. Harper, 7 T. R. 9; 2d Starkie on Evidence, 288, 9. The only remaining question now to be decided is, was the judgment in the court below rightfully given in favor of the plaintiffs, or properly pronounced on the verdict? That it was, is perfectly manifest from an inspection of the judgment itself. After the eois consideratum is recited by the court, judgment proceeds to declare that the plaintiffs do have and recover of the defendants, severally and respectively, the slaves in the declaration mentioned, if they are to be had, or if they or any of them arc not to be had, then it awards the value of each slave separately, as ascertained and fixed by the jury- It further declares, that ihc plainliffs do have and recover of the defendant, the amount of damages as found by the jury, and that sum is set forth in the judgment for the detention and hire of the slaves while they were in the possession of the defendant, together with the costs of suit. The judgment in every particular follows the verdict, and corresponds with it. The writ of error sued out, denies the validity of this judgment. It is certainly valid and regular on its face. In what then does its illegality consist? It is pronounced upon a valid and regular verdict, presumed to be given on full and competent proof, and every way satisfactory to the minds of the jury who rendered it.

This is an action of detinue, where the plaintiffs sue for the recovery of the particular thing demanded, and the judgment in such form of actions must be in the alternative, and is given for the recovery of each particular item of property mentioned in the declaration, if to be had, or if not to be had, then it is rendered for the respective value of each article separately. It is usual for the jury to give damages for the detention of the property, and in such a case the judgment should pursue the finding, and award the damages assessed by the jury, with the costs of this. In the present instance, the judgment is in strict conformity with the rules just stated, and that being the case, it is fully-sustained by all the authorities. Higginbotham vs. Rucker, 2 Call 313.

As it has been already shown that the legal presumptions are all in favor of the verdict and judgment of the court below; and as these presumptions stand unopposed and uncontradicted by any part of the record, it necessarily follows that there is no error in the opinions and judgment of the Circuit Court, now brought up for revision and correction. It may be, and probably is true, that the defendant had a good and lawful defence to the action. But, then, if he had, he has lost the benefit of that right by his own lashes, or that of his counsel. There is but one bill of exceptions taken during the trial, and that wholly fails to spread any part of the testimony on the record. It was unquestionably the duty of the defendant’s counsel, in excepting to the opinion of the court in overruling his motion for a new trial, to have incorporated into the record all the testimony given in the cause, so that this court could have seen whether there was error or not in the decision and judgment of the Circuit Court.

If, in omitting to do this, the defendant’s rights have been prejudiced and injured, the fault rests with himself and his counsel, and this court is not authorized, by bare possibility or conjecture, to supply any omission or mistake.

The legal consequence, then, attaches in favor of the verdict and judgment of the court below, and is decisive of the question. This being the case, it necessarily follows that the judgment of the Circuit Court must be affirmed, with costs.