The United States, Plaintiff In Error v. Gotlieb Breitling

• Decision Date: 01 December 1857
• Citation: 15 L.Ed. 900,20 How. 252,61 U.S. 252
• Parties: THE UNITED STATES, PLAINTIFF IN ERROR, v. GOTLIEB BREITLING
• Court: U.S. Supreme Court

61 U.S. 252

20 How. 252

15 L.Ed. 900

THE UNITED STATES, PLAINTIFF IN ERROR, v. GOTLIEB BREITLING.

December Term, 1857

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Alabama.

The case is stated in the opinion of the court.

It was submitted on printed arguments by Mr. Black (Attorney General) for the United States, and Mr. Percy Walker for the defendant.

Mr. Chief Justice TANEY delivered the opinion of the court.

This action was brought by the United States against the defendant in error, as one of the sureties in the official bond of David E. Moore, who was receiver of the public moneys at Demopolis, in the State of Alabama. Under the instructions given by the court to the jury, the verdict and judgment were in favor of the defendant.

A bill of exceptions to these instructions, signed and sealed by the judge who tried the case, is set forth in the transcript. But the defendant contends that the exception was not taken by the United States according to law and the rules and practice of the Circuit Court, and that it cannot therefore be regarded as a part of the record of the proceedings in that court, nor considered here in revising its judgment.

A brief extract from the exceptions, together with the note attached to it by the judge, will show how this question arises.

After setting forth the bond and the testimony of several witnesses, examined on the part of the defendant, the exception proceeds in the following words:

'The defendant then offered to read in evidence the depositions above referred to, when the plaintiff's counsel objected to the reading of the depositions of McDowell, W. H. Roberts, and George G. Lyon, as they were severally offered, which objection the court overruled. The plaintiff's counsel objected to the evidence of D. C. Anderson, who was examined as a witness by defendant, whose evidence went to show that Smith, one of the obligors to the bond, was poor and in straitened circumstances, which objection was overruled. This, together with the depositions above referred to, was all the evidence offered by defendant, and the same having been submitted to the jury, and argued by counsel, the court, at the request of the defendant's attorneys, charged the jury, 'that if the jury believe, from the evidence, that at the time Breitling's name was signed to the bond, it was understood and intended that other persons were to sign it as obligors, and he was to have notice that they did so, and who they were, and then, if satisfied, was to acknowledge the bond in the presence of witnesses, who were to attest it, and if this was not done, and the bond was not afterwards ratified by him, the jury ought to find for the defendant;' to which charge the plaintiff's counsel excepted.

'And the judge therefore signs and seals their bill of exceptions, this 15th day of May, 1856, a day after the adjournment of the court.

JOHN GAYLE, [seal.]'

Explanations attached to the Bill of Exceptions.

'During the term of the court, the attorney for the United States presented a bill of exceptions. The bill was presented on Saturday before the court adjourned, which was on Wednesday. On Monday morning, the bill was handed to the United States attorney, with the request that he submit it to the opposing counsel. On the third day after this, the minutes were signed, and the court adjourned.

'I heard nothing further from the bill till the 9th or 10th May, when it was presented by the plaintiff's attorney again, with the written objections of the attorneys of the defendant, that it should be signed after the adjournment. The clerk will subjoin this explanation to the bill of exceptions.

'JOHN GAYLE.'

'Filed 15th May, 1856.'

The objection stated in the note is founded upon a rule of the...