Kirby v. Wood , 16 Me. 81 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

’The errors assigned are, that the damages were illegally assessed ; and that the conditional judgment was entered in such a manner as to require the payment of more than was then actually due to prevent the issuing of the writ of habere facias. Where error in law is alleged, the writ of error lies only to correct such errors as are apparent upon the record. This record only shews, that the original suit was entry upon plaintiff’s own seisin demanding a certain tract of land described, and alleging, that he was seized of it in fee and in mortgage.

There is no description in the record of the deed of mortgage under which the plaintiff claimed title. There is a mortgage deed and a note referred to in the mortgage filed in the case, but nothing, except the presumption which may arise from their being thus filed, to prove, that they were the exhibits presented to the court, from which the amount due was ascertained. They no more constitute any part of the record, than they would in a case submitted to the jury. The court does indeed by statute make up the amount of the conditional judgment, but in so doing it acts upon proof introduced by the parties, not. upon inspection of the record; and such proof in a common law suit is no more entered upon the record when a judge acts upon it than when a jury acts upon it.

In the case of Storer v. White, 7 Mass. R. 448, the note was described in the declaration, and a note was filed, corresponding to such description in all respects except that it does not appear to have been alleged to be payable in foreign money. The defendant was defaulted and the court say “ although such a note as was described in the assignment of errors was filed in the case, yet we cannot take notice of it as a part of the record, any more than we could a deposition or other piece of evidence filed.” So in the case of Pierce v. Adams, 8 Mass. R. 383, the court say “ it cannot appear to us, that the note, a copy of which is sent up with the record, was the note on which the action was brought. But at any '•ate, it was merely evidence.” The argument for the plaintiff in error endeavors to malte a distinction between those cases and the present, and says it was the duty of the Court in this case to make up the judgment, and that •would have brought before it the mortgage deed describing the note, and thus bring the note before the court, and thence infers, that it became part of the record. The error in this reasoning consists in the conclusion, that whatever is before a court of common law is part of the record. It is not so, when presented to the court and acted upon as matter of evidence; and that is the only manner in which it could have been presented in this case. There is less to identify it even as evidence than there was in the case of Storer v. White.

Judgment affirmed.