
    John M’Fadden versus Joseph Otis and Others.
    The report of a judge is no part of the record in an action.
    This was an action of trover for the conversion of 650 barrels of flour, the property of the plaintiff. At the trial upon the general issue, at the last November term, before Parker, J., a verdict was found for the plaintiff, agreeably to the directions of the judge who sat in the trial.
    The defendants moved for a new trial on the ground of this direction being against law, and requested the judge to report the evidence and his direction, they waiving their right to review the cause. This report was made, and the motion for a new trial argued. After the Court had expressed * an [ * 324 ] opinion against granting a new trial, G. Blake, attorney of the United States for this district, who was counsel for the de» fendants, stated that the defence rested on the construction of the embargo laws passed by congress, as appeared by the judge’s report, and that he was instructed, if judgment went against his clients, to remove the cause, by writ of error, into the Supreme Court of the United States.
    
    
      Dexter and Jackson for the plaintiff.
    
      Note. In an action of trespass for seizing and detaining the plaintiff’s vessel and cargo of flour, which was sued by Luther 
      
      Bixby vs. Joseph Otis & Al., and which came before the Court at this term on a motion for a new trial made by the defendants, and founded on the judge’s report, a like order was passed, on a similar affidavit being filed by the district attorney.
   It was then observed to him by the Court, that the report of the judge was not made a part of the record, and as the nature of the defence, resting on the embargo laws, was apparent only from the report, 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 either to have filed a bill of exceptions, or requested a special verdict.

The district attorney then moved that the defendants might be restored to a right to review the cause, that upon the trial on review he might file a bill of exceptions, or have the facts found specially; he declaring that his clients, in waiving their right to review, acted agreeably to his advice, which was given by him on the persuasion that they might have relief by error, as well on the facts reported by the judge, as on a bill of exceptions or a special verdict. Upon his filing an affidavit of the same import with his declaration, the Court ordered that the defendants be restored to the right of review which they had waived, and that judgment be entered for the plaintiff on the verdict, as if the defendants had not excepted against it.  