
    Hills et al Plaintiffs in Error; versus Ross.
    THIS was a writ of error diredted to the Circuit Court for ■ the'Diftridt of Georgia. On the return of the record, feveral errors were affigned; but the only one, now .relied on, ftated “ that the fadts on which the Circuit Court had founded their decree, did not appear fully upon the record, either from the pleadings and decree itfelf, or a ilate of the cafe agreed to by the parties, or their council, or by a ftating of the cafe by the court/’ as required by rh'e 19th fedlion of .the judiciary adt.'
    On examining this record, it was found, that noftatement of fadts had been made either by the court or the parties, nor did it appear from the pleadings and decree, upon what fadts the decree of the Circuit Court had been founded. But it appeared, that a number .of witneffes - had been produced and fworn, (the record did not fay examined) at the hearing before the Circuit Court, whofe teftimony had not been committed to writing; while, on the other band, the depofitions of the wit-neffes who had been examined before the Dijlriii Court, were annexed to the proceedings returned. It was acknowledged by the council for the Defendants in error, that the teftimony of the witneffes produced in the Circuit Court, had been taken viva voce, according to the 30th fedlion of the judiciary adt, and that their depofitions had not been committed to -writing. It was conceded by the council on both fides, that without other aids than fuch as were to be derived from this imperfedT record, it would be impoffible to obtain a fair review of- the proceepings of the Circuit. Court in this caufe. But Cox and J>/ponceau, for the Plaintiffs in error, contended for a reverfal off the decree. Reed (of South Carolina) E. lilghman and Levels for the Defendants, infilled on the other hand, that the decree ought to be affirmed, unlefs it was fhewn to be erroneous ; that the omiffion on which the Plaintiffs relied, could not be affigned as an error, and did not vitiate the proceedings ; that it was to be afcribed to the negleft of the Plaintiffs them-felves, who ought, in the firíl inilance, to have applied to the adverfe council to ílace a cale, and if they refufed, or difagreed in their ilatement, then to the court itfelf; that the Defendants ■ being fatisfied with the decree and not • intend.ng to appeal .therefrom, it was not their bufmefs to alíiíl t Plaintiffs in perfefting their record, foas to enable them to bring it properly before an Appellate Court. Upon the whole, they prayed that the decree be affirmed.
    For. the Plaintiffs in error,
    it was infilled, that the omiffion of a ilatement of the cafe, vitiated the whole record. The judiciary aft of the United States had -greatly innovated upon the old fyilem of Admiralty and Chancery proceedings, the forms and princ'- les of the common law were interwoven with,, and in many caies, entirely 'fubftituted to thofe of the Roman jurifprudence. The- 30th leftion of that aft required, that the teilimony of witneffes iaculd be taken viva voce, inilead of written depoiitions, both in the Diílrift ai d the Circuit Court. In the former of thtfe tribunals, indeed, when either of the parties expj-effed an intention, of appealing ;to the other, the depoiitions' of the witneffes were to be committed to writing, but this cafe wits an exception to the general rule. In the Circuit Court, where new evidence was admitted, no provifioa ’ had been made for committing the teilimony to writing,.except • in the cafe of abfer.t, aged, infirm or departing witneffes, whofe evidence might be taken de bene cjft, prccifely as in the. comimon law courts. The whole teilimony, therefore, could not, without the confent of parties, come before the Supreme' Court of -the United'States, in any cafe where new witneffes were heard, or the. feme witneffes who were examined below, were produced de novo before the Circuit Court.
    It was clear, that the intention of Congrefs was to veil the powerof trying matters of fail in Admiralty and Equity cafes,in the Diílrift and Circuit Courts exclufively. Like the ver-diftof a jury, the decifion of the latter tribunal, was final and conelufive, as tofaft. - 'The Supreme Court were only empowered. to cs.rreft their decrees in matters of law. Therefore an appeal did not lie to them, but only a writ of error, asatcom--mon law. And by the 22d feftion of the judiciary aft, it was ' provided, that no decree of the Circuit Courts ihould be re-verfed for any error in fail.
    
    But {till the civil law pleadings, as by bill or libel⅛ anfwer, &c. were retained in tbe'courts below. Thofe not being carried on with the logical clofenefs and accuracy, for which the fyilem of common law pleadings is fo much and fo juftly admired, the fails which grounded the decree, would feldom, if ever, appear from the pleadings and decree itfelf. , Amidft the heap of matter with v/hich libels and anfwers are generally crowded,- and the variety of fails, often immaterial to -the real points in conteft, aiTerted and denied by the refpeilive parties, it would beroften difficult even to know what was the true ob-■jeib. of the controverfy. The lav,’, therefore, wifely ordered ' that the fails on which the decree was founded, where they did not appearfrom the pleadings and decree itfelf, ihould beihewn, by a ílatement, which, like a fpecial verdiil, ihould enable the court to determine whether the inferences of law, drawn from thofe fails by the inferior court, were juft or erroneous.
    To caufe fuch a ílatement to be made,, or to make it them-felves, was.a duty which the law enjoined upon the Circuit Courts, and which they were bound to perform. The words of the ail of Congrefs were exprefs and imperative. “ It ihall li be the duty of the Circuit Courts, in caui'es in Equity and ^ of Admiralty and Maritime jurifdiilion, to caufe the fails on {£ which they found their fentence, or decree, fully to appear upon .“ the record, either fiom the pleadings and decre'e itfelf, ora “ irate of the cafe agreed by the parties, or their, council, or if “ they difagree, by a feting of the cafe by the court.” The court were therefore bound to fee that the fails appeared upon the record, in feme one or other of.thefe modes, neither party could compel the adverfe counfel or the court to fete a cafe; and the courts, by omitting this indifpenñble requinte, had it in their-power, whenever they pleafed, to make their decrees ' final and conclufive, in law as well as in fail, and effectually to deprive the tinfuccefsful part-y of the benefit of a revifion, which the law had expref-ly provided in his favour, it being then the default of the court, it might be well affigned-for error.' 8 Co. 59. Cro. Eliz. 84: 107. And the ail of Congrefs, being introduilory of anew law, was to be ítriiÜy purfued. 4 Bac. Ah;. 641. a Sira. 971.
    The Council further illulirated the fubjeit by feveral ana* logics drawn from the civil and the common law. It-was, they faid, a principle which appeared to pervade thofe two fyílems,' that where the fuperior court were judges of law' and fail, the inferior tribunal was bound to return to them the whole evidence ; when judges of iaw only, then they were bound to make the fails appear upon which the judgment or decree was founded. Orders of the courts of Quarter Seffions are only to be quaihed for errors in law, therefore, it is only necéffary that the fads on 'which they were founded,, ihould appear upon the record ; but in the cafe of convidions by juft ices upon penal ftatutes, the fads are to be re-examined, and, therefore, they are bound to fet forth the whole evidence, 2 Stra. 997. At common law, where the trial is by jury, ftill the fads on ■which the judgment is founded, muft appear on the face of the whole record, and where the verdid did not find precifelv . the matter in iffue, as where it found that c‘ by, non perform-'<c anee* of the promife, the Plaintiff had fuftained £. 50 da- “ mages, without- exprefsly finding that the Defendant had1 "prom fed, - the judgment for the Plaintiff was reverted. 21. Vht. \Ab.- 441. becaufe . the fuperior judges could not determine .whether the law had been- properly inferred from the fads,, unlefs the fads themfelves were clearly and exprefsly.-ftated. This rule obtained at civil law for the very fame reafons. On ■ a bill of review in chancery, where the law alone was to be • re-examined, it hád been often refolvxd, that the fads proved and allowed by the court as proved, ihould be fo mentioned in the fentence, otherwife on a bill of review, thofe -.fads jhculd be taken-as net proved, for elfe a decree colild never be rever- ■ fed by a bill of review, but all erroneous decrees muft be re-verfed on; appeals only. 1 Fern. 166. 214. 2r6. x Cha. Ca. 54- 55- . . ■ ’ J
    The Council for the Defendant in error,
    infilled, that r.lr though the want of a ft'atejnent of fads was a technical'aefed in the record before the court, which they were willirig to fupply as much as lay in their power, from their notes of the evidence which had been taken-before the Circuit Court.; syet the ccurt could not, without great injuftice, reverie the decree-On t'nataccount. ■ They were bound by the 24th fe’dion ofthe. Judiciary Law, on the reverfal of a decree of the court,. to~ipafs iuch a decree as the. Circuit Court ihould have palled. -How could they do it. in this inilap.ee ? Were .they, for art-omifilon , of the- court, which they could not help any more than the Defendants, to put jt out of their pbwer to obtain juítice ; and how could t-hey fay, that the Circuit Court ihould have rendered a different decree, fince they .were not po’ileffed of the-merits of the caufe ?
   The Court

were, unanimoufly5 of opinion, that the error afiigned, was not a' fuififcient ground for reverfing the degree, and recommended to the parties to come to fame .agreement, which might bring the matters in controveriy fairly before them.

After fome converfátion, an agreement took place between the council oh both lides,'' that tne caufe ihould be continued" to the next term ; apd that, ia the mean time, new evidence might be taken pn both fules, arid the whole rhatter of fa<&, as well as the law, brought before the Supreme Court.of tha United States, as upon an appeal. 
      
       See-the famticafc ¡nfl .
     