Lead Opinion
delivered the opinion of the Court.
This is a writ of error to the district court of the United States for the eastern district of Louisiana.
The facts., disclosed on the record are substantially as follows:
The suifc-'was originally commenced by an attachment, brought in.the parish court of New Orleans, and removed, on the petition of defendant, into the district court of the United States for the eastern district of Louisiana: the. plaintiffs being citizens of Louisiana, and the defendant a citizep of Massachusetts.
' The petition of the plaintiffs set out the ground of . their action to be certain sales of tobacco, made by them to one Eben Fiske, as the factor and agent of the defendant, and for his account, at New Orleans, in June and July 1825; and certain bills of exchange drawn in their favour by Fiske at New Orleans, on the defendant at Boston, at several dates from the 2d to the 20th of July 1825, for the amounts of such sales. The defendant’s answer (filed in the district court after the removal of the cause from the parish court) contains a general traverse of the allegations of the plaintiffs’ petition, and tenders an issue, tantamount to the general issue of nil debet. The answerconclud.es with a petition of reconvention for ten thousand dollars damages. Upon this issue the cause was tried in the district court, by consent of parties, before a special jury, in March 1826, and a verdict passed against the defendant; who moved the court for a new trial; which motion was overruled by the court, and final judgment rendered on the verdict against the defendant, who thereupon sued out this writ of error. The record presents two bills of exceptions on the part of the defendant, now plaintiff in error.
First bill oí exceptions. Fiske, having first received from the plaintiffs a full and absolute release (which recites that the plaintiffs had dealt with him as the factor and agent of the defendant, and upon the credit and responsibility of the latter alone,) from all liability to them on the contract of sale and as drawer of the bills, was produced as a witness on the part of the plaintiffs to prove that he had purchased the
Second bill of exceptions. The defendant moved the court to direct the clerk of the court to take down in writing the testimony of the several witnesses examined by the respective parties, in order that the same might appear of record ; such being the practice of the several courts of. the state of Louisiana, according to the constitution and laws thereof, and such being the rule of practice, in the opinion of the' counsel for defendant, to be pursued in this court, accord-? ing to the act of congress of the 26th of May 1824'. But the clerk refused, .&c., and the court refused to order the clerk to write down the same, or to permit the witnesses themselves, the counsel for either of the parties, or any other person, to write down such téstimony; the court expressing the opinion that the court of the United States is not governed by the practice of the courts of the state of Louisiana.
No charge or advice whatever was given or.asked from.the court to the jury on any matter of law or fact in the cáse : nor was any question. whatever raised of the competency or -admissibility of such evidence, other than the specific exception before taken to the competency, of Fiske, on the sole objection of interest; the substance of the facts proved by him being in no manner drawn in'question-before the court.
The record sets out all the documentary evidence; ail of which appears to have been admitted by both parties. This consists' of the protested bills above mtotioned, with an admission upon the record by the defendant, that they hád been regularly returned under protest to the plaintiffs, and that plaintiffs were, at the time the suit was commenced, the holders and owners of the same: and of a series of defendant’s letters to his agent Fiske, from the 26th of- March 1823 to the 10th of August 1825, containing evidence that Fiske, during all that time, was settled at New Orleans, and was the factor and agent of the defendant, there to receive sbipmentsfof cargoes from Boston for the New Orleans market, and to purchase and ship from the latter place to the
Upon the argument in .this court the first bill of exceptions .has been abandoned ás untenable, and in our judgment upon sound reasons.
The second bill of exceptions is that upon which the court is now called upon to deliver its opinion.
By the act of Louisiana of the 28th- of January 1817, section 10, it is provided, that in every, case to be tried by a jury, if one of the parties demands that the facts set forth in the petition and answer should be submitted to the jury to h<ive a special verdict thereon, both parties shall proceed, before the swearing of the jury, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the court, arid signed by the judge; and the jury shall be sworn to decide the question of fact or facts so alleged and denied, and their verdict or opinion thereof shall be unanimously given in open court, &c. and be conclusive between the parties as to the facts in said cause, ás well in the court where the said cause is tried, as on the appeal, and the court shall render judgment; provided, that the jury so sworn shall be prohibited to give any general verdict in the case, but only a special one on the facts submitted to them. This section points out the mode of obtaining a special verdict, in the sense of the common law. The twelfth section then provides, that when any cause shall be submitted to. the court' or to a jury without statements of facts, as is provided in the tenth section of the act, the verbal.evidence shall in all cases where, an appeal lies to the supreme court of the state, if either party requires it, and at the time -when the witnesses shall be examined, be taken down in writing by the clerk of the court, in order to be sent up to the supreme court, tfr serve as a statement of facts' in case óf appeal; and the written evidence produced on the trial shall be filed with the proceedings, &c. &c. The object of this section-is'asserted-to be to enable the appellate court in cases of general verdicts, as well as of submissions to the court, to exercise the power of granting a new trial, and revising the- judgment of the inferior court.
Of itself, the course of proceeding under the state law of Louisiana could not have any intrinsic force or obligation in the courts of the United States organized in that state : but by the act of congress of the 26th of May 1824, ch. 181, it is 'provided that the mode of proceeding in civil causes in the courts of the United States that now are or hereafter may be established in the state of Louisiana, shall, be conformable to the laws directing the mode of practice in the district courts' of the said states; provided, that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make by rule such other provisions as may be necessary to adapt the laws of procedure to the organization of such court of tin. United States, and to avoid any discrepancy, if any such should exist, between such state laws and the laws’of the United States.
This proviso demonstrates, that it was not the intention of congress to give an absolute and imperative force to the. modes of proceeding in civil causes in Louisiana in the court-of the United States; for it authorises the, judge to modify them, so as to adapt them to the organization of his oWn court. It further demonstrates, that no absolute repeal was intended of the antecedent modes of proceeding authorised in the courts under the former acts of congressj for it leaves the judge at liberty to make rules by which to avoid any discrepancy between the state laws and the laws of the United States; and wfoat is material to be observed, there' is no clause in the act pointing in the slightest manner to any intentional change of the mode in which the supreme court of the United States is to exercise its appellate power in causes tried by jury, and coming from the courts of the United States in Louisiana ; or giving it authority to revise the judgments thereof in any matters of fact, beyond what the existing*laws of the United States authorised.
Whether the district court in Louisiana had. adopted any rules on this subject, so as to modify or suspend, the opera
But, admitting that the decision of the court below was wrong, and that the j>arty was entitled to have his testimony taken down in the manner prayed for; still it is important to consider, whether this is such an error as can be redressed by this court Upon a writ of error.
Generally speaking, matters of practice in inferior courts, do not constitute subjects upon which error can be assigned in the appellate court. And unless it shall appear that this court, if the omitted evidence had been before it on the re-, cord, would have been entitled to review that evidence, and might, if upon such review it had deemed the conclusion of the jury erroneous, have reversed the judgment and directed a new trial ift the court below there is no ground upon which-the present writ of error can be sustained.
It was competent for the original defendant to have raised any points of law growing out of the evidence at the trial, by a proper application to the court; and to have brought any error óf the court in its instruction or refusal, by a bill of exceptions, before this court for revision. Nothing of this kind was done or proposed. No bill of exceptions was tendered to the court,* and no points of law are brought under review. The whole object, therefore, of the applica-. tion to recofd the evidence, so far at least as this court can take cognizance of it, was to present the evidence here in order to establish the error of the verdict in matters of fact. Could such matters be properly cognizable in this court upon the present writ of error 9 It is very certain that they
The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to suclr a trial is, it is believed, incorporated into, and secured in every state constitution in the union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cas.es. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; and which received an assent of the people so general, as to establish its importance as a fundamental guarantee of the rights and liberties of the people. This amendment declares, that “ in suits .at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law.” At this time there were no states in the union, the basis of whose jurisprudence was not essentially that of the common law in its widest-meaning; and probably no states were contebriplated, in which it would not.exist. The-.phrase “common law,” found in this clause, is used in contradistinction to equity, .and. admiralty, and maritime jurisprudence. The constitution had declared, in the third article, “ that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,” &c. and to all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only jn extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at com
But the other clause of the amendment is still more important; and we read it as a substantial and independent-clause.- “ No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules oUthe common law.” This is a prohibition to the
Was it.the intention of congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a.new trial by a re-examinatioii of the facts tried by the jury *? to enable it, after trial by jury,' to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts sitting in all the other states in the union? We think not. No general words, purporting-only to regulate the practice of a particular court, to conform its modes of proceeding to those prescribed, by the state to its own courts, ought, in our judgment, to receive an interpretation which would create so .important' an alteration in the laws of .the United States, securing the trial by jury. Especially ought it not to receive such an interpretation, when there,is a power given to the inferior court itself to prevent any discrepancy between the state laws and the laws of the United States; so that it would be left to its sole discretion to supersede, or to give conclusive effect in' the appellate court to the verdict- of the jury.
If, indeed, the construction contended for at the bar were to be given to the act of congress, we entertain the most serious doubts whether it would not be unconstitutional. No court ought, unless the terms of an act rendered it unavoidable,' to give a construction to it which should involve a vio
Our opinion being that, if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial; the refusal to allow that evidence to be entered on the record is. not matter of error, for which the judgment can be reversed. The judgment is therefore affirmed, with six per cent damages and costs.
Dissenting Opinion
dissenting.
This cause was removed from the district court of Louisiana by a writ of error; and a reversal of the judgment is prayed for, on the errors assigned.
The suit was originally brought in the parish court of the parish of New Orleans, and was removed to the district court of the United States, which exercises the powers of a circuit court.
In. their petition, the plaintiffs below state that one Eben Fiské, as agent at New Orleans for William Parsons, the defendant, residing ht Boston, purchased from the plaintiffs large quantities of tobacco, and drew bills on the defendant in payment, which he refused to honour. The plaintiffs claim 10,000.
The defendant, in his answer, denies the material facts set forth in the petition. A jury was impannelled, and a verdict rendered for $6484. On the trial, the bills of exchange were produced, and a great number of business letters be'tween Parsons and Fiske were read.. -
Fiske -was sworn as a witness, though objected to on the
The first assignment of errpr relied on is, that from the facts apparent on the record, the plaintiffs had no right of action against the defendant, and that, therefore this court will decree a judgment to be entered in favour of the defendant.
2. That they will, at least, reverse this judgment, and award á new trial, for one of the following reasons:
1. Because the court refused to direct the evidence to be put upon the record.
2. Because the whole question Was a question of law, and. the decision was against law.
3. It is not.strictly a common law proceeding ; but a proceeding under the peculiar system of Louisiana;.and according to that system, the court has power to reverse the judgment, under circumstances which would not give it that power where the trial had been according to the common law.
As this cause involves a constitutional question, which has not been settled by this court, and as,I am so unfortunate as to differ in opinion with a majority of the members of the court, I shall, with great deference, present my views of the case..
In the state of Louisiana, the principles of the common .law are not recognized; neither do the principles of the civil law of Rome furnish the basis of their jurisprudence. They have a system peculiar to themselves, adopted by their statutes, which embodies much of the civil law, some of the principles of the common law, and, in a few instances, the statutory provisions of other states. This system may be called the civil law of Louisiana, and is peculiar to that state.
The modes of proceeding in their courts are more nearly assimilated to the forms of chancery than to those of the common law. The plaintiff files his petition, in which- he sets forth the ground of complaint and the relief prayed for. Process issues against tlie defendant; and when he is in court, he is ruled to answer the bill. The answer is filed, in which he admits, denies, or avoids the facts set forth in the petition,
When the cauáe is brought to a hearing, the court decides the facts and the law, if neither party requires a jury. The testimony is taken down at the trial, and either party may move for a new trial, or take an appeal to the superior court.
If an appeal be taken, the testimony forms a part of the record, and is re-examined by the appellate court. Either party has a right to require a jury in the inferior court, and also to demand that the testimony be taken down at the trial; so that it may form a part, of the record, and be considered by the appellate court, should an appeal be taken.
If either party desires what is called in the statute a special verdict, each party makes a statement of facts, which exhibit the grounds of controversy; and these statements are submitted to the jury with the testimony, in the case. In this casfe, also, if either party requires it, the testimony must be taken down at. the trial.
The facts found by the jury are examined by the appellate court, and its judgment is given on the facts without tLe intervention of a jury.
Such is the outline of the course of practice in the courts of Louisiana. A court of chancery there is as little known, and the rules of its proceedings as little regarded, as are those of a court of common law. Redress is sought in substantially the same manner-for an injury done to the person, his property or character. Whether he seeks to recover a debt,or asks the specific execution of a contract, orto avoid a contract on the ground of fraud or accident, the mode of proceeding is the same; he files his petition, and the defendant must answer.
In thus repudiating the forms and principles of the common law, the state of. Louisiana has pursued a course different from her sister states. .This has resulted from the views of jurisprudence derived by the great mass of her citizens from the foreign governments with which they were recently connected.
It is no doubt a wise policy to adapt the principles of
By an act of congress, of the 26th of May 1824, it is provided that the mode of proceeding in civil causes in the courts of the United States, that now are, or hereafter may be established in the state of Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of the said statq: provided, that the judge of-any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make, by rule, such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States, arid to avoid any discrepancy, if any such exist, between such state laws and the laws of the United States.
There is no evidence, before the court that the power given to the district judge-in this proviso has been exercised : the first part of the section, which adopts in the district court of the United States the same mode of proceeding in civil actions as is established in the courts of the state, musttherefore.be considered as in force. And until this power be exercised, this section is a virtual repeal of so much of the judiciary act of 1789, and all other acts prior to 1824, which came within its provisions.- It is contended, that whatever may be the rules of practice in the district court of Louisiana, they do not confer jurisdiction on this court. The force of this objection is admitted.
Any law regulating the practice of an inferior court does not confer jurisdiction on an appellate court; but where such court has jurisdiction of the case, it must be governed in its decision by the rules of practice in the court below.
This court has jurisdiction by writ of error to revise the final judgment, in any civil action, of a circuit court of the United States where the matter in controversy exceeds two thousand dollars. Whether this judgment be obtained by the forms of the civil or the common law is immaterial.
The forms of. proceeding adopted under the Louisiana practice, in the district courf, constitute no objection tú a revision of it's final judgments by writ Of error.
In the case of Parsons against Armor, brought to this court by writ of error from Louisiana, and decided the present term, the court has sustained its jurisdiction. That case in no respect diifers in principle from this, except that the amount due was ascertained by the court in that cause, and in this by a jury. Both causes were brought against Parsons to recover the price of certain quantities of tobacco sold to Fiske, the alleged agent of the defendant. The same testimony was used in both causes, with the exception of the bills of exchange.
In the case of Armor, the court looked info the testimony, which was certified as a part of the record. From this testimony it appeared that Fiske acted as the factor of Parsons, and in no other respect as his agent; that Parsons looked to Fiske for the faithful disbursement of the funds placed in his hands, and the purchases were made in.his name, and the payments sometimes in drafts, and at others in cash; that the credit was given to Fiske and not to Parsons by the vendors of the articles purchased. The court therefore reversed; the judgment obtained agarnst Parsons in the district court.
The testimony, thus examined by the court, was not made a part of the record by a bill of exceptions, but was taken down at the trial. Had this been don'e in a case at common law, the court would not have considered the testimony as' a part of the record; and consequently they could not have looked into it in deciding the cause. But the practice of the district'court, under the sanctions of the act of 1824, was considered as presenting the testimony in that cause as fully to the consideration of this court., as in a case at common law, where it is embodied in a bill of exceptions. The facts being ascertained by the court, on weighing the testimony the law was pronounced in its judgment..
This redréss cannot be given, it is urged; because, if the testimony had been taken down, it could haVe been of no advantage to the plaintiff in error, as this court copld not examine it. And why may not this, testimony be examihed by the court, the same as in the case of Armor. The facts, are the same, and no difference exists in the merits of the claims.
The" reply is, that in this case a jury passed upon the claim, and in the other the court, exercising the-functions of.a jury, decided both the fact and the law. The difference then, consists in this; that the jury found the facts in the one case, and the court in the other; and in both'cases the law was pronounced by the court.
This difference in the mode of decision, it would seem, ought not to affect the judgment of this court, unless there be some positive provision of law which must control it.
The seventh article of the amendment of the constitution is referred to as conclusive on the point. It reads, “ in all suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
To this objection an answer may be given, which to me is satisfactory.
This is not a suit at common law, and therefore does not come strictly within the provision of the article.
In what respect can this action be compared to a suit at common law?
The words in the latter clause of the seventh article, “ and no fact tried by a jury shall be otherwise re-examined in any court of the United States,” refer to the first clause of the sentence, which limits the trial to “ suits at common law.” If this were not the true construction of the sentence, facts. found by a jury in an issue directed by a court of chancery, would be conclusive-on the chancellor. The verdict has. never been so considered, and especially in the appellate courts of chancery. If the intervention of a jury in this case do not change its character, so as to make it a common law proceeding, then there is no difference in principle between this case and that' of Armor. As the court in that cause looked into the testimony to ascertain the facts, so as to apply the principles of law, why not do the same in this. In that case the judgment of the circuit court was reversed . a reversal in this case would render it proper to send down the cause for trial.
But the circuit court in.this case refused to order the testimony to be taken down at the trial. This is undoubtedly error, if this court could examine the testimony, as it did in
The objection made, that if congress by adopting the practice of the Louisiana courts may evade- the provisions of the seventh amendment, and that they may abolish the trial by jury in the courts of the United States, by creating special remedies • not known to the common law; is answered by saying, that congress have the power to do much, which it is not probable they will do. Have they not power to repeal the acts which confer jurisdiction on the courts of the United States, and which regulate their practiced This would not only take away the right of trial by jury in such courts, but'all trials of every description. Is it at all probable that this power will be exercised ? The answer must be in the negative; and so must the aifswer to an inquiry whether congress, by creating new remedies, will dispense with the trial by jury.
Is this article of the constitution to be construed to mean, by the words “ suits- at common law,” all suits which are not properly called cases of equity, of admiralty and maritime jurisdiction? Under the practice of Louisiana, how are such suits to be distinguished *?. The form of action is the same in equity as at law; and if in all cases where a. legal right could be prosecuted in other states, at the common law, they, are to be denominated actions at law in Louisiana, the design of congress in adopting the Louisiana practice is defeated. The actmf 1824 intended to relieve the parties to a suit in the district court in Louisiana from the forms of the common law, or the special regulations of
. Suppose congress had specially provided, that -in all trial's before the district court of Louisiana, the testimony should be taken down,-and that it should form a part of the record, so as to present the facts to the supreme court- in the same manner as though they had been embodied in a prayer for special instructions to the jury, and brought up.by bill of. exceptions ; might not (his couri determine the questions of law-arising in the case'? This, it appears to me., is neither moré-nor less than has been done, by the act of 1824.
-Are all thé -laws of the different states for' the'valuation of improvements - by commissioners; where a- recovery for land is. bad against a bona fine occupant who claimed title, .-unconstitutional *? If suit be brought in the state courts, .these laws are .enforced as constitutional; but,'if broughtin thé circuit court of tW Unitéd States, they are unconstitutional.- This .would make the constitutionality of .acts'depend, not-upon a construction-of the constitution, but upon the jurisdiction where the action is brought. It would give rédress in the state courts, which in the. United States courts would be unconstitutional. '
This would be the inevitable consequence, if the--provision in the seventh article be restricted in its application to the .courts of-the United States, and-be construed .to-embrace every species of action where a.legal right is prosecuted; And, if to . escape this,consequence, the provision of the article-be. extended-to embrace .all cases which, come within the above construction, without reference-to the jurisdiction where.the remedy is sought; then all laws extending-the jurisdiction of. justices of the peace above twenty dollars are unconstitutional; and also every arbitration system, which does not require a jury. An appeal from the judgment of a justice of the peace will not evade the constitutional objection; for the judgment is final, and the question involves the right of thé justice to give judgment in the case, without the intervention of a jury.
Suppose congress, for the purpose of adjusting land titles in a . district of country, should establish, a special court,
From the foregoing considerations I am brought to the conclusion, that this case is not strictly a suit at common law; and that this court may, under the act 6f 1824, as it did in .the case of Armor, look into the record, and, from the facts there set forth, determine the. question of .law: and as the court below refused to order the testimony to be taken down ; I think the defendant has been deprived of . a right secured to him by law; and that for this error, the judgment should be reversed, and the cause sent down for further proceedings ; with instructions to the district court to order the testimony to be taken down at the trial.
This cause came on to be heard on the transcript ol the record from the district.court of the United States for the district of Louisiana, and was argued by counsel ; on consideration whereof, it. is ordered and adjudged by this court, that the judgment of. the said district court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.