Barfield v. Impson ex rel. Commercial & Railroad Bank

Mr. Justice Clayton delivered the opinion of the court. This was an action of' assumpsit, brought in the name of Caleb Impson, for the use of the Commercial and Railroad Bank of Vicksburg, upon a promissory note[ executed by the defendants, to the bank. There is no assignment of the note, which is transcribed into the record, nor any thing which shows the interest of Impson. The declaration, both in the general and special counts, sets forth a promise to pay to the plaintiffs. The defendants put in the plea of non assumpsit, which was withdrawn at the time of the trial, and a judgment entered by default. There is no bill of exceptions in the cause. This writ of error is prosecuted to reverse the judgment, because the note, which is copied into the record, by the clerk, does not correspond with that described in the declaration. If there had been a trial by jury, and the introduction of the note as evidence, had been objected to, it must have been excluded. [330] The plaintiff would then have been at liberty to amend, if he could make out a proper case. The case now presents a totally different aspect. Our statute directs, “ that no judgment by nil dicil, shall be stayed or reversed, for any omission or fault, which would not have been a good cause to stay or reverse the judgment, if ther'e had been a verdict.” H. & H. 591. It is manifest that after verdict, without a bill of exceptions taken on the trial, the judgment could not be stayed or reversed, because there would be nothing by which to do it. The medium of communication between the circuit court and this court, for the revision of its proceedings upon a trial before a jury, is a bill of exceptions. That affords the only evidence which we can recognize, of what takes place upon the trial, and we are bound to presume the proceedings of the court below to be correct, unless by the bill of exceptions, we are furnished with evidence to the contrary. We cannot notice, as has already been frequently decided, a mere certificate of the clerk, that this or that evidence was introduced; the certificate of the court is required. Maulding v. Rigby, 4 How. 222. Carmichael v. Browder, Ib. 432. Dunlop v. Monroe, 7 Cranch. If there had been a trial before a‘jury, this judgment would be affirmed, because there is an entire absence of the legal re-requisites to show the error complained of. As the statute places the judgment, by nil dicit, upon, at least, as high ground, an affirmance is a necessary consequence. Judgment affirmed.