Barnacoat v. Six Quarter Casks of Gunpowder , 42 Mass. 225 ( 1840 )

Shaw, C. J.

A question was made, in the present case, whether the libellants could have a bill of exceptions. Without examining the question critically, the court are of opinion, that a libel, sued as a process in rem for a forfeiture, is in the nature of a civil action, and that either party may file exceptions in matter of law.

But we think that there is much matter in this bill ol exceptions, which is irrelevant, and cannot properly be introduced in a bill of exceptions. It is stated that certain facts were proved, and in one instance the court was requested to state the evidence at large, with a view to sustain the motion on an alleged statement of facts. Much of the argument has been founded upon facts so introduced. We think that exceptions must be confined strictly to matters of law ; that it cannot be stated in a bill of exceptions that certain facts were proved. It may properly be stated, that evidence was offered tending to prove certain facts ; but this is done only to show the relevancy, pertinency, and correctness of the opinions and directions of the court, in matter of law, upon such evidence. Nor can a court consider the evidence in a bill of exceptions, with a view to set aside a verdict, nor found any decision or judgment on facts, stated in a bill of exceptions, but not embraced in the issue, or otherwise appearing on the record.

It was objected, that “ not guilty ” was not a good plea, and ought not to have been received. Looking at this libel, it manifestly appears to embrace two subjects, and to have two objects in view ; the one, to show the gunpowder liable to forfeiture, and the other, to show the respondent, Swett, liable for the costs ; both allegations being warranted by the statute ; and if the facts were proved, the powder would be liable to forfeiture, and Swett to the payment of the costs. But one of these charges might be true, and not the other. And this is contemplated by the statute, which provides for a forfeiture without costs, when the person having the custody and possession óf the powder is not known, or cannot be found, or when, at the time of seizure, it is not in the custody or possession of any person The court are of opinion, that as to all those averments which went to cast an imputation of a violation of the law upon Mr. Swett, and charge him with the costs, not guilty was a good plea. Whether it was good to the forfeiture, we need give no opinion. If it was, still the jury negatived it, and then the judgment oí forfeiture was right. If it was not, then there was no plea, and the judgment was good upon nil dicit. And to that judgment there is no exception.

In considering whether there was any error in ruling, that the respondent was not liable for costs, we are obliged, for reasons already given, to lay out of the case all the evidence detailed in the bill of exceptions, tending to show where the powder was found, and look only to the finding of the jury. Looking at the verlict only, it appears judicially, that this gunpowder, when seized, was not in the custody or possession of Mr. Swett, within the meaning of the statute of 1833, c. 151, § 5, on which this process is founded. If the libellants were desirous of more specific directions in point of law, as to what constitutes custody and possession.; whether an individual under this statute is liable for the acts of his servants, clerks, attendants, and persons employed by him ; whether it extends to acts done on his premises, without his knowledge ; or whatever other acts or permissions constitute custody and possession, within the true intent and meaning of this statute; a request for such instructions to the jury, for their guidance, should have been made. If given, they would have had the benefit of them ; if refused, they would have been entitled to take exceptions, and if the- exceptions were sustained, that is, if the instructions prayed for ought to have been given, they would have had the benefit of them, on a new trial. The court are of opinion that the judgment was right, on both points ; and whether the true and proper reasons were assigned for it, or not, is immaterial.

Exceptions overruled and judgment affirmed.