at the trial of the cause, without any seal of the court annexed thereto, and this became § 953 of the Revised Statutes. Since the passage of that Act, it is not necessary to seal a bill of exceptions. Herbert v. Butler, 97 U. S. 319, 320; Maloney v. Adsit, 175 U. S. 281, 285, but the signature is still necessary. Origet v. United States, 125 U. S. 240; United States ex rel. Kinney v. United States Fidelity & Guaranty Co., 222 U. S. 283. Strict requirements are thus insisted on so as to make certain that the reviewing court shall have before it an accurate account of the evidence or exhibits, which were before the trial court in the original hearing of the issues of the case, properly certified. The same strictness prevails as to including in the bill the evidence upon which reliance is had to justify the exception, if not included in the original record. In many cases the error complained of rests on a negative showing that there was no evidence adduced at the trial upon which the ruling of the court complained of could be predicated. If a motion is made in the trial court to take the case from a jury, or other fact-finding tribunal, and direct a verdict or give judgment on the ground that, as a matter of law, only one verdict or judgment can be reached, it must appear that in the bill of exceptions is contained all the evidence actually adduced before the trial court. It has always been ruled in such a case that if the bill of exceptions does not contain all the evidence, it will be presumed that the evidence omitted was sufficient to justify a refusal to grant the motion. Russell v. Ely, 2 Black 575, 580; City v. Babcock, 3 Wall. 240, 244; Grand Trunk Railway Co. v. Cummings, 106 U. S. 700, 701; Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, 606; Hansen v. Boyd, 161 U. S. 397, 403; United States v. Copper Queen Mining Co., 185 U. S. 495, 498; Nashua Savings Bank v. Anglo-American Co., 189 U. S. 221, 231. By 386 Opinion of the Court. this it is not meant that the evidence shall be set forth at length in the words of the witnesses, and of the writings and documents admitted, but only that the purport and substance of all of it be included. In setting it forth, regard should be had to the requirements of paragraph 2 of Rule 4 of the Rules prescribed by this Court. 222 U. S., Appendix, p. 8. Lincoln v. Claflin, 7 Wall. 132, 136; Zeller's Lessee v. Eckert, 4 How. 289, 297, 298. The question here arises because of the alleged omission of certain exhibits from the bill of exceptions, which the petitioner contended were not relevant to the issue. Because of this, the Circuit Court of Appeals, of its own motion, and not by request or consent of either party, applied the rule above stated. We do not think, however, that the bill of exceptions can be said to have omitted these exhibits or to have prevented the Circuit Court of Appeals from considering them with all the evidence. The bill of exceptions recites that in the trial both parties appeared by counsel, the jury was impaneled, and that there were introduced in evidence by the plaintiff exhibits 1, 2, 3, 4, 5 and 6, all as described; that they were admitted, subject to objection and exception as irrelevant, and the objection was overruled; and that the defendants offered exhibits No. 7, No. 8, No. 9, No. 10, No. 11 and No. 12, all as described, and as containing all the testimony, and also exhibits offered at the hearing before the Interstate Commerce Commission, and that the plaintiff objected to the introduction of all those exhibits from No. 7 to No. 12, and that this objection was overruled and an exception noted. The bill of exceptions then concluded as follows: "The plaintiff's exhibits referred to as Exhibit No. 1, Exhibit No. 2, Exhibit No. 3, Exhibit No. 4, Exhibit No. 5, and the defendants' Exhibit No. 12 are hereinafter set forth fully as a part of this bill of exceptions. By virtue of an order of the Presiding Judge W. I. Grubb, plaintiff's Opinion of the Court. 276 U.S. Exhibit No. 6 and the defendants' exhibits numbers 7, 8, 9, 10 and 11, respectively, are omitted from this bill of exceptions in order that they may be sent by the Clerk of the lower court, in compliance with the said order of the Presiding Judge, direct to the Court of Appeals. This was all the evidence in the case. This was followed by the stipulation signed by the attorneys for both plaintiff and defendants, and the order of the Court, the latter being that referred to in the bill of exceptions, as follows: "It appearing to the court that in this cause it is necessary and proper in the opinion of the court that certain original papers and documents should be inspected in the Circuit Court of Appeals upon writ of error by said court: "It is therefore ordered that the following papers, to wit: Exhibits 6 to 11, inclusive, referred to and described in the bills of exceptions, be transmitted by the Clerk of this court to the Clerk of the Circuit Court of Appeals at New Orleans, La., and returned after the disposition of the writ of error to the Clerk of this Court. The parties to this cause by their respective counsel do hereby stipulate and agree as follows: 66 That the plaintiff's exhibit No. 6 and that the defendants' exhibits 7, 8, 9, 10 and 11, may be omitted from the bill of exceptions, and sent by the Clerk of the trial court direct to the Court of Appeals in their original form, and further that the exhibits need not be printed in the record. This agreement is made in conformity with an order of the trial court by the presiding judge that said exhibits, viz: 6, 7, 8, 9, 10 and 11 shall be omitted from the record, and sent direct by the Clerk of the trial court to the Court of Appeals." While the rule, as we have shown by its history, in respect to the inclusion of all the evidence in the bill of 386: Opinion of the Court. exceptions must be respected, we must give the recitals of the bill a reasonable construction. Kleinschmidt v. McAndrews, 117 U. S. 282, 286; Waldron v. Waldron, 156 U. S. 361. While it may be said that the form in which this bill of exceptions is sent up is in its parts slightly inconsistent in itself and apparently self-contradictory, it is clear that the bill as signed by the trial judge, and read in the light of the order which is referred to and identified in the bill, brought and was intended to bring to the appellate court all of the evidence heard in the court below, and all the exhibits, even those said in it to be omitted therefrom which were ex industria sent by order of the court to the court above for that court's examination. We think that by the references in the bill the exhibits separately sent by order of the trial court to the Circuit Court of Appeals are sufficiently identified as part of the bill. They were omitted from the bill in the sense only that they were to be sent separately from the rest of the bill to the reviewing court, perhaps with a view, rightly or wrongly, to avoiding the necessity of printing them. But the certificate of the judge certainly included them in the bill when, after expressly referring to them, he said "This was all the evidence in the case." To be sure, it is well settled that exhibits found in the record, or even annexed to a bill of exceptions, when not attached to it by way of identifying them as intended to be part of it, can not be treated as such. Bank v. Kennedy, 17 Wall. 19, 29; Reed v. Gardner, 17 Wall. 409, 411; Jones v. Buckell, 104 U. S. 554; Hanna v. Maas, 122 U. S. 24. But in Leftwitch v. Lecanu, 4 Wall. 187, on page 189, Mr. Justice Miller, while exemplifying this principle, said in rejecting a bill of exceptions: "If a paper which is to constitute a part of a bill of exceptions, is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions." And again, in Jones v. Buckell, supra, at 556, Chief Justice Waite, in making a similar ruling, said: "Of course, evidence may be included in a bill of exceptions by appropriate reference to other parts of the record, and if that had been done here it might have been enough." As we have said, we think the identifying references, in the bill, to the exhibits are sufficient. The result is that the Circuit Court of Appeals should have considered the issues before it on the bill of exceptions as containing all the evidence below, and that the dismissal for lack of it was erroneous. The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings. Reversed. J. W. HAMPTON, JR., & COMPANY v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS. No. 242. Argued March 1, 1928.-Decided April 9, 1928. 1. Section 315 (a), Title III, of the Tariff Act of Sept. 21, 1922, empowers and directs the President to increase or decrease duties imposed by the Act, so as to equalize the differences which, upon investigation, he finds and ascertains between the costs of producing at home and in competing foreign countries the kinds of articles to which such duties apply. The Act lays down certain criteria to be taken into consideration in ascertaining the differences, fixes certain limits of change, and makes an investigation by the Tariff Commission, in aid of the President, a necessary preliminary to any proclamation changing the duties. |