Bigby vs. Powell, adm'r.

Testing the complainant's title to relief by these rules, it cannot be sustained. When the bill of exceptions was of fered to the plaintiff's counsel for his acknowledgment of service, there was no necessity for his relying on the statements of the opposite counsel as to its contents. He ought to have examined it. The enquiry must have been made of counsel for plaintiff in error in relation to the bill of exceptions on which an acknowledgment of service was requested, and not to the transcript of the record. The transcript of the record is never made out until the bill of exceptions is filed, and that is never filed until notice or service of a copy on the opposite party or his counsel. The bill of exceptions does not contain the record, nor does it carry it up; it only contains, or rather specifies, the errors complained of in the decision or judgment of the Court; and it ought to contain, further, a brief of the oral and a copy of the written evidence adduced on the trial in the Court below. It is the duty of the party or his attorney complaining of the decision or judgment of the Court, to make out the bill of exceptions; and it is the duty of the Clerk to make out, certify and send up a complete transcript of the entire record of the cause below. When the counsel spoke of the record, therefore, on presentation of the bill of exceptions for the signature and certificate of the presiding Judge, or for the acknowl edgment of service by the opposite party or his counsel, he must have spoken in reference to the bill of exceptions, and spoken of it, as it was his duty to make it out. If it specified with clearness the errors complained of in the judgment, and contained a brief of the oral and a copy of the written evidence adduced in the Court below, it was complete; and the bill in this case does not complain that it does not. The allegation of the bill is, that the bill of exceptions did not contain all the facts, and was partial and incomplete, and only set out the proceedings in the case up to the new trial; and was wholly silent as to the last trial and all the subsequent proceedings. The object of the bill exceptions was

a

Bigby vs. Powell, adm'r.

to have the judgment of the Court below granting a new trial, reviewed, and corrected if erroneous. There was no complaint of error in the subsequent trial, and so far as the bill of exceptions was concerned, which it was the duty of the counsel to prepare, it was sufficient and full as to its purposes and objects, and it ought to have been silent as to the last trial and all the subsequent proceedings.

[2.] But it is said that the statement of the counsel prevented the party from looking into the transcript of the 1ecord, and suggesting a diminution thereof, which he would have done, on the ground that the record of the proceedings and trial, subsequent to the judgment of the Court ordering a new trial, was not sent up. It is not emirely certain, although there was an intimation from some of the members of the Court, on the first impression, to the contrary, that it would not have been held, upon solemn investigation of the question, that the record, as sent up, was not all that was demanded by the law, being a complete transcript of the entire record of the cause below. It will be remembered that the entire record of the cause up to and including the final judgment of the Court granting the new trial, was sent up, and that it was that judgment on which the error was assigned. This seems to me to have been sufficient as a complete transcript of the entire record of the cause below, which was brought up by the plaintiff in error.

[3.] But if it was not, could the defendant in error have availed himself of a waiver or release of errors, otherwise than by plea? I apprehend not. The bill does not show that there was a plea, but on the contrary, that the counsel was insisting on the defence in this Court without a plea, by way of demurrer or argument. He could not demur, for it was the bill of exceptions which alleged and specified the errors, and it was neither necessary nor proper that it should bave set forth the proceedings subsequent to the final judgment on which the error was assigned. The counsel could not have demurred to the transcript of the record; nor could

Bigby vs. Powell, adm'r.

he have relied on matter therein contained as a waiver or release of errors without a plea. A release of errors necessarily admits the errors complained of, but sets up matter in avoidance. Such plea may, in its turn, be the subject of reply or demurrer.

[4] The bill before us does not allege that there wasa waiver or release of errors by the plaintiff in error, in the judgment of the Court awarding a new trial. It gives a history of the proceedings in the Circuit Court and in the Supreme Court, and merely alleges, on that branch of the case, that the counsel for complainant was proceeding, in the Supreme Court, to rely on the progress of the case in the Court below, after the granting of the new trial, and the subsequent trial, as a waiver and release of errors in that judgment, when he was stopped on the ground that the bill of exceptions and record showed no such proceedings; and that this Court declared that if these proceedings had been sent up, it would have held that all errors in the judgment complained of were released thereby, and would have pronounced a judgment of affirmance. A declaration of this Court under such circumstances cannot settle the law, nor can it entitle a party to an equity when there is none without it-the declaration cannot be sustained by the law. We think, however, upon a deliberate consideration of this case, that there was no release of errors in that case by the defendant to this bill. The cause was not called up for trial at his instance, but in its order. He may not have had a good cause for continuance and perhaps was not present, according to the bill, to make a showing. After the judgment was rendered in the cause, to pay it off, presented no impediment to his right to have the error in the judgment of the Court granting a new trial reviewed and reversed.

[5.] If the party was entrapped into a joinder of issue on the assignment of error by the misrepresentations of his adversary, he ought to have shown it to the Court and moved

Bird vs. Meadows.

to be allowed to withdraw it and suggest a diminution of the record.

[6.] It would be extremely dangerous to make it the foundation of a proceeding in Chancery, to upset the judgments of this Court, or to delay their execution, that counsel have misrepresented to the Court or the opposite counsel the contents of a bill of exceptions. It is the duty of both to examine them. The omission of a palpable duty ought never to be allowed as a ground of equity.

Judgment affirmed.

JOHN BIRD, plaintiff in error, vs. JoHN T. MEADOWS, defend

ant in error.

Assumpsit, from DeKalb county.

October Term, 1857.

Decided by Judge BULL,

This was an action of assumpsit upon a promissory note for $500, given in 1853 by the plaintiff in error, who was the defendant in the Court below, to G. J. Wright, and by the said Wright transferred to the defendant in error.

Defendant pleaded that the payee of the note was by its terms, to present the claims of Elijah Bird, then under sentence of death for murder, and to use his influence with the Legislature and the members thereof in an illegal way, to-wit:

Said

payee was to resort to no other means to obtain the par

don of said Bird than by using the authenticated copy of the testimony given by the witnesses for and against said Elijah; thereby making the Legislature of the State act as an

appellate tribunal.

Plaintiff's counsel demurrred to the plea.

McLendon and wife, et al. vs. Woodward et al.

The Court sustained the demurrer, and counsel for the defendant excepted.

The jury found a verdict for the plaintiff, and the defendant excepted.

HAMMOND and Son appeared for the plaintiff in error.

HILL, contra.

By the Court.-BENNING J. delivering the opinion.

This case is like the preceding one,* except that there does not arise in it, the second question, which arose in that case. Consequently, there will be the same judgment in it-an affirmance.

*Bird vs. Breedlove, 24 Ga. Rep. 623.

Judgment affirmed.

THOMAS MCLENDON and wife and others, plaintiffs in error, vs. N. H. WOODWARD and others, defendants in error.

Heirs at law may, upon a special case made, es for instance upon a charge of collusion between the parties, institute suit over the head of the administrator, making him a party defendant in the case. It requires, however, a clear clase, to justify this interference with the due course of administration, by the trustee appointed by the testator, or by the Ordinary.

In Equity, from Butts county. Decision on demurrer, By Judge CABINESS, at July Adjourned Term, 1857.

This bill was filed by Thomas McLendon and wife, and others, heirs and distributees of Aaron Woodward, deceased, late of the county of Butts, against William J. Woodward, administrator of said deceased, and Newdigate H. Woodward,