leaf, 516. It is true that written contracts of 1829, because it was then in existence, and 335*] *do not contain all the municipal regu- was not expressly repealed. The facts of the lations necessary to their execution. These are case are at variance with such an implication; tacitly embraced in them.. Not so, however, so is every legitimate legal inference. Were where the State is a party to the contract, and this a contract between individuals-and so, in those regulations would essentially vary its the cases before cited, this court has construed terms. In such a case the subsequent law is such charters-unquestionably the legal pre.substituted for a previous one, just as a sub-sumption would be that the new superseded sequent contract between the same individuals, the existing contract. Such, too, is the prerelative to the same subject matter, would consumption in legislation; a subsequent provitrol, modify, or extinguish a former one. The contract, then, between the State of Ohio and the Commercial Bank of Cincinnati is that contained in the charter passed by the former in 1829, and agreed to and accepted by the latter. What is the obligation of it? The State obliged the corporation to pay a certain penalty in a certain contingency; for that it was to be liable, and for no more; if any law of the State imposed a larger payment in that contingency, the obligation was changed-impaired. Sturges v. Crowninshield, 4 Wheaton, 122; Green v. Biddle, 8 Wheaton, 84; Odgen v. Saunders, 12 Wheaton, 257. Is there any State law imposing a larger liability than the contract contained in the charter imposes? It imposes a penalty of twelve per cent. for suspension; that is the entire liability. The Act of 1824, as construed by the highest court of law in the State, imposes an additional penalty of six per cent. more. This certainly changes and impairs the obligation of the contract between the State and the bank, unless the two laws are so blended together as to be but one regulation; or the mere priority of existence of the Act of 1824 makes it necessarily a part of that of 1829; or the constitutional prohibition does not apply to laws passed previously to the contract; or the effect of the law upon the contract must result directly from its own language, and not from its judicial construction or application. None of these exceptions can be successfully maintained in the present case. The Act of 1824 is not blended with that of 1829. The latter is a written instrument, deliberately drawn so as to embrace the whole subject matter; if the provisions of the Act of 1824 were part of it, this would have been so declared. The Act of 1829 is not a mere legislative act, prescribing a municipal regulation affecting citizens or corporations, but it is the agreement of the State itself, for its own benefit, securing what it claims for itself, and imposing the conditions on the other contracting party. If there were clauses in the Act of 1824 less favorable to the State, could they be construed so as to affect privileges it might reserve in that of 1829? If the State had agreed, by a general law, in 1824, to advance its bonds to the amount of a million to every bank, and in 1829 agreed by the charter to advance to this bank bonds to the amount of half a million, would it be contended that the former agreement was not superseded by, but added to, the latter? It would be easy to suggest similar contingencies. No. The charter is complete, so far as regards all matters of mutual stipulation between the 336*] parties; *there is nothing in it which requires the Act of 1824 to be blended with it. Nor is any inference to be drawn, by legal construction, that the parties intended to include the provisions of the Act of 1824 in that sion by law for the same subject matter is a substitute for a previous one. General laws are so construed; where penalties are imposed, they are not treated as cumulative; where different remedies are given for the same money, both cannot be resorted to, but one or the other must be chosen. Titcomb v. Union F. & M. Insurance Company, 8 Mass. 333; Bartlet v. King, 12 Mass. 545; Adams v. Ashby, 2 Bibb, 98; Morrison v. Barksdale, 1 Harper, 103; Smith v. The State, 1 Stewart, 506; Stafford v. Ingersoll, 3 Hill, 41; Sharp_v. Warren, 6 Price, 137; United States v. Freeman, 3 Howard, 564; Daviess v. Fairbairn, 3 Ibid. 644; Beals v. Hale, 4 Ibid. 53. Besides, there can be no inference founded on a general legal principle which is to prevail against an inference derived from the law in the particular case. The Act of 1829 provides for the entire case of suspension of payment of notes and deposits in gold and silver. Even the same court recognized it as so doing, when it was before them on another occasion. State v. Commercial Bank, 10 Ohio, 538. The only expression contained in it, which can be cited as at variance with this view, is the imposition of the increased interest as "additional damages,” which, it is contended, should be construed to be in addition to that imposed by the Act of 1824. But the language does not justify this construction; the imposition of the increased interest not merely on notes, but on deposits, which are not provided for in the Act of 1824, is inconsistent with it; why double the rate, if not to substitute one for the other? It was to be an increase of interest, not a penalty imposed, as is shown by the express language to that effect in the charter of the Franklin Bank, of which the provisions on this point are the same. 3 Chase's Ohio Stat. 2078. Nor do judicial interpretations of corresponding provisions warrant such a construction. Hubbard v. Chenango Bank, 8 Cowen, 99; Brown v. Penobscot Bank, 8 Mass. 448; Suffolk Bank v. Worcester Bank, 5 Pickering, 106; Suffolk Bank v. Lincoln Bank, 3 Mason, 1. It is not denied that there are many cases in which laws, existing at the time of making a contract, will be regarded by courts as necessarily forming a part of it. But it is not so where the State is a party to the contract; where the law to be construed is itself the *contract; where it [*337 is not apparent that the parties must have contemplated such an incorporation of previous laws. 3 Story's Com. on the Constitution, 247; 1 Kent's Com. 395. There is no decision of this court on the effect of an existing State law on a contract made by the State itself; every one relates to cases of contracts between third persons; yet even in these it has always been held that it must appear that the existing law was intended to be embraced, either from a reasonable interpretation of the terms of the contract itself, or from the place where was made, which justifies the inference of intention that the lex loci was to govern. Sturges v. Crowninshield, 4 Wheaton, 122; Clay v. Smith, 3 Peters, 411; Baker v. Wheaton, 5 Mass. 509, 511. The whole series of decisions in regard to the effect of State insolvent laws on contracts, and as being considered to form, by implication, a part of them, rests on this view of the subject, as does the application of the lex loci to the construction of them. tions to possess such privileges; the latter law is in itself constitutional, but if the judiciary so applies it as to infringe the privileges of the particular corporation, is it not a violation of the constitutional prohibition? On what other principle do the decisions of this court, in regard to State insolvent laws, rest? They have been held to be constitutional or the reverse, not in themselves, but according to the manner and circumstances to which they are applied by the judgment of a court; if applied to contracts The prohibition of the Constitution had for made within the State enacting it, an insolvent its object to prevent the obligation of a contract | law is held to be valid; if applied to those made being impaired by any law whatever, no matter without the State, the identical law is held to whether its passage was before or subsequent be unconstitutional, or, to speak more corto the contract. The inquiry is, Does a con-rectly, the judgment of the court founded upon tract exist? What is its obligation? Does a it is reversed, as making the law violate the law impair it? If there is in existence a con- constitutional prohibition. When this whole tract, valid in itself, such as the parties had a question was so elaborately discussed by this right to make, not embracing by its terms or court (Ogden v. Saunders, 12 Wheaton, 255), no by just legal implication the provisions of other point received more unequivocally than this the laws, then any State law that changes or con- concurring assent of the judges; they affirmed trols it, or can be so applied by the judicial the validity of the State insolvent law, as tribunals of the State as to change or control not contrary to the constitutional prohibition it, is contrary to the language and intention of in its operation on the contract, because it the constitutional prohibition, no matter when was made and to be executed within the State such law bears date-no matter whether its that passed the law, and on that ground Judge operation be prospective or retrospective-on Johnson placed the ultimate judgment of the contracts existing when it was passed, or en- court. 12 Wheaton, 368. In one case, Clay tered into subsequently. In the first plan of v. Smith, 3 Peters, 411, the contract was made the Constitution there was no such clause; it in Kentucky, the suit was instituted in Louiwas introduced to prevent any interference by siana, a discharge under an insolvent law of the laws of the States with private contracts. It latter was pleaded and admitted, because it apwas proposed to restrict this to such State laws peared that the plaintiff, though a citizen of were "retrospective," but that was not Kentucky, had received a dividend from the adopted, and the existing limitation was made syndics in Louisiana; had not that circumstance with a view to reach the declared object-"a re-occurred, the application of the law of Louistraint upon the States from impairing the siana to the Kentucky contract would have obligation of contracts" in any way. 2 Madi- been held to impair its obligation. Was this son Papers, 1239, 1443, 1445, 1552, 1581. The the law itself, or its application, which conreference to a future action-that no State stituted the violation of the constitutional pro"shall pass" such laws-relates to the date of vision ? There is scarcely a prohibition of the the Constitution; it is a prohibition future as | Constitution that might not be evaded by State to that instrument, not to the contract to be laws, if the evasion must arise necessarily from affected. No State law, after the Constitution the law itself, and not from its application by should be adopted, was to impair une obligation the State courts. Cannot a State pass a generof a contract; this was the object of the pro-al law placing certain restrictions on the travhibition. Calder v. Bull, 3 Dallas, 388; Sturges v. Crowninshield, 4 Wheaton, 206; McMillan v. McNeill, 4 Ibid. 212; Ogden v. Saunders, 12 Ibid. 255. as eling of coaches and stages, but not referring in terms, or by necessary implication, to the mail coach, and if the highest court of the State recognizes the law to be valid [*339 It is evident, that if such be the object of as applied to such a coach, is not that a violathis prohibition of the Constitution, then to tion of the constitutional reservation to the make it effectual it must operate, not only United States exclusively of matters connected where its violation is the result of the direct with the postoffice? Would the decision of the 338*] language of the law, but *wherever the State court be affirmed by this court, or, what law is so applied by that branch of the State is equivalent thereto, jurisdiction over it be degovernment—its judiciary-which enforces the clined, on the ground that it was a mere judilaw, as to produce this result, to violate this cial misconstruction of the State law? A State prohibition. A legislative act seldom, perhaps may pass a law requiring, in general terms, the never, violates a contract proprio vigore; it is captain of a vessel to adopt certain sanitary the judgment of a court, applying the act to regulations on board, to carry certain lights, to the contract, which does so; the law impairs steer in a certain way so as to avoid collisions, the contract only by force of the judgment; it and impose a penalty for neglect; but if the is, indeed, the law that does so, but only be highest court of the State sustained a suit to cause the judicial application of it has given recover the penalty, when it appeared that the that construction and application to its provi- violation of the law was in the course of a forsions. If this were not so, then the law would eign voyage, and not within the local jurisdicin every case be constitutional, or the reverse, tion of the State where its authority to enforce in itself, and not by reason of its application. police regulations prevails, would not that Yet this will hardly be contended. Suppose a judgment be subject to the revision of this law confers special privileges on a corporation, court? A State has a right to borrow money; and a subsequent general law forbids corpora- it may pass a law authorizing its executive to do so on the faith of the State; if in so doing is more comprehensive than if it meant to prohe should issue "bills of credit," and the high-hibit an infringement of its provision by a mere est court of the State should sustain their le- legislative "act;" it seems to use the term gality as founded on that law, would this court "law" in a broader sense, as if it was the comrefuse to revise that judgment, on the ground plete and sovereign action of a State, comthat the law itself was constitutional, and that menced by its Legislature but consummated its application to the particular case was a by its judiciary. In another section, where it mere act of the court, not contemplated by the draws the distinction between the actions of State Legislature, and therefore not violating these branches of the State government (art. the constitutional prohibition? 4, sec. 1), it refers to "public acts" and "juAgain, it is not alone on the language itself dicial proceedings." Did it not mean by a of the State law, it is on its construction also "law" the union of the two? In the clause by the State court, that the supervising judg- of the ordinance for the government of the ment of this tribunal will be founded. The Northwest Territory, intended to embrace the decision of a question arising under a local same object as that of the Constitution, and law of a State by its highest judicial tribunal | adopted by the Continental Congress almost at is regarded by this court as final, not because the same time, it was declared that no such the State tribunal has power to bind it, but be-law ought ever to be made "or have force"cause it has been deliberately held and decided as if any enforcement of it, whether legislathat "a fixed and received construction by ative, executive, or judicial, was as much to be State in its own courts makes a part of the guarded against as its formal enactment. 1 statute law." Elmendorf v. Taylor, 10 Wheat. Statutes at Large, 51. 152; Shelby v. Guy, 11 Ibid. 361; Green v. Neal, Is not the case now before the court ex6 Peters, 298. We have here a local law of actly that which was adverted to by Judge the State of Ohio; referring to the law itself, Trimble, as within the intent and operation of we find it to contain nothing which impairs the the constitutional prohibition (12 Wheat. 316), obligation of the contract between the State where a law might in itself produce no effect and Commercial Bank of Cincinnati, nothing prohibited by the Constitution, yet would do which violates the constitutional prohibition; it so when applied to a case differently circumhas received a construction by the highest State stanced? He held that the "only necessary tribunal which makes it a law impairing that inquiry" was, What was "its effect and opercontract, violating that prohibition; that con- ation" in the suit upon the particular contract? struction has therefore become "a part of the-whether that effect was to impair its obligastatute law," as fully as if it were in terms tion. What has been the effect and operation contained in it; the judgment of the Supreme of applying the Act of 1824 to the suit which Court of Ohio is founded upon the laws as so has been brought upon this contract of 1829; construed; this court, in revising that judg- has it not been to impair its obligation? Such, ment, would not, under its own well consid- too, is the whole scope of Chief Justice Marered decisions, give a different construction to shall's remarks in the same case (12 Wheat. a local law; much less would it do so when the 337), where he denies that the constitutional effect would be to sanction, under the form of prohibition is confined to "such laws only as a judicial proceeding, an infringement of a *operate of themselves." He says that [*341 constitutional prohibition. the law itself, at its passage, may have no effect whatever on the contract, and asks, "When, then, does its operation (in violation of the constitutional prohibition) commence? We answer, when it is applied to the contract; then, and not till then, it acts on une contract, and becomes a law impairing its obligation." Can language lay down a legal principle more directly applicable to the case before the court than this? Can there be any doubt that the principle itself is in entire harmony at once with the language and the object of the constitutional prohibition? The legislation of Congress also seems to have contemplated the enforcement of this constitutional prohibition, where its infringement 340*] *arises from the judicial construction of a State law. The Constitution prohibits the passage of a State law impairing the obligation of a contract. It leaves to Congress the legislation necessary to enforce this prohibition. How has Congress enforced it? Not by reserving to itself a direct supervision of the State laws; not by subjecting them to a direct supervision of the Supreme Court of the United States; but by requiring that they should first be passed upon and construed by the highest court of the State itself, and that, if the judgment of that court so construes them, or gives them such validity, as to make them repugnant to the constitutional provision, then this court may reverse such judgment, and by so doing make void such an application of the law. What could be the object of this act of Congress, if it was not to sanction a revision of a judgment of the highest court of a State, founded upon its construction of a State law -upon its holding a State law so construed to be valid-whether that construction was in itself right or wrong, whenever the direct effect of such judgment was to impair, under color of that law, the obligation of a contract? Even the language of the Constitution itself It is submitted, therefore, that there is no circumstance to withdraw this application of the Act of 1824 to the charter of the Commercial Bank of Cincinnati from being included within the constitutional prohibition as impairing its obligation. If this has been established, then it is clear that the judgment of the Supreme Court of Ohio, recognizing that act as valid when so applied, may and ought to be reversed by this court; for it appears by the record that the validity of the State law was drawn in question on that ground in the State court, and its validity there affirmed. Miller v. Nichols, 4 Wheat. 311; Wilson v. The Black Bird Creek Marsh Co. 2 Peters, 250; Satterlee v. Matthewson, 2 Peters, 409; Harris v. Dennie, 3 Peters, 292; Crowell v. Randell, 10 Peters, 391. Mr. Justice Grier, after giving the statement | their charter, and that the court erred in their of the case which is prefixed to this report, construction of it; and therefore made it unconproceeded to deliver the opinion of the court: stitutional by their misconstruction. A most The first and only question necessary to be strange conclusion from such premises. decided in the present case is, whether this court has jurisdiction. But grant that the decision of that court could have this effect; it would not make a To bring a case for a writ of error or an ap-case for the jurisdiction of this court, whose aid peal from the highest court of a State, within the twenty-fifth section of the Judiciary Act, it must appear on the face of the record, 1. That some of the questions stated in that section did arise in the State court; and, 2. That the question was decided in the State court, as required in the section. It is not enough, that the record shows that "the plaintiff in error contended and claimed" that the judgment of the court impaired the obligation of a contract, and violated the provisions of the Constitution of the United States, and "that this claim was overruled by the court"; but it must appear, by clear and necessary intendment, that the question must have been raised, and must have been decided, in order to induce the judgment. Let us inquire, then, whether it appears on the face of this record, that the validity of a statute of Ohio, "on the ground of its repugnancy to the Constitution or laws of the United States," was drawn in question in this case. The Commercial Bank of Cincinnati was incorporated by an act of the Legislature of Ohio, passed on the 11th of February, 1829, which provided that, in case that the bank should at 342*] any time suspend *payment, and refuse or delay to pay in gold or silver any note or bill on demand, it should be "liable to pay, as additional damages, to the holder of such notes, twelve per cent. per annum on the amount thereof, for the time during which such payment shall be refused or delayed." By a previous act of 24th of January, 1824, all banks had been declared liable to pay six per cent. interest on their notes, when they had refused payment on demand, from the time of such demand or refusal, "or from the time that such bank or banker shall have ceased or refused to redeem his notes with good and lawful money of the United States." The only question which arose on the trial of the case was, whether the bank was liable to pay the twelve per cent. in addition to the interest of six per cent. given by the Act of 1824, or only the twelve per cent. imposed by the act of incorporation. Did the decision of this point draw in question the validity of either of these statutes, on can be invoked only where an act alleged to be repugnant to the Constitution of the United States has been decided by the State court to be valid, and not where an act admitted to be valid has been misconstrued by the court. For it is conceded that the Act of 1824 is valid and constitutional, whether it applies to the plaintiffs' charter or not; and if so, it follows, as a necessary consequence, that the question submitted to the court and decided by them was one of construction, and not of validity. They were called upon to decide what was the true construction of the Act of 1829, and what was the meaning of the phrase "additional damages," as there used, and not to declare the Act of 1824 unconstitutional. If this court were to assume jurisdiction of this case, it is evident that the question submitted for our decision would be, not whether the statutes of Ohio are repugnant to the Constitution of the United States, but *whether the Su- [*343 preme Court of Ohio has erred in its construction of them. It is the peculiar province and privilege of the State courts to construe their own statutes; and it is no part of the functions of this court to review their decisions, or assume jurisdiction over them on the pretense that their judgments have impaired the obligation of contracts. The power delegated to us is for the restraint of unconstitutional legislation by the States, and not for the correction of alleged errors committed by their judiciary. We are of opinion, therefore, that this case must be dismissed for want of jurisdiction. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Ohio, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction. the ground of repugnancy to the Constitution JOHN SCOTT and Carl Boland, Plaintiffs in of the United States? Or was the court mere Error, V. ly called upon to decide on their construction? We are of opinion that there can be but one answer to these questions, and but few words JOHN JONES, Lessee of The Detroit Young necessary to demonstrate its correctness. It is too plain for argument, that, if the act of incorporation had stated, in clear and distinct terms, that the bank should be liable, in case of refusal to pay its notes, to pay twelve per cent. damages in addition to the interest of six per cent. imposed by the Act of 1824, the validity of neither of the statutes could be questioned, on account of repugnancy to the Constitution. But the allegation of the plaintiffs' counsel is, that the statute of 1824 was not intended by the Legislature to apply to Men's Society, Defendants in Error. This court no jurisdiction under Judiciary Act to try question whether political body which passed a particular law was a "State." An objection to the validity of a statute, founded upon the ground that the Legislature which passed it were not competent, or duly organized, under acts of Congress and the Constitution, so as to pass valid statutes, is not within the cases enumerated in the twenty-fifth section of the Judiction over the subject. clay Act, and therefore this court has no juris In order to give this court jurisdiction, the statute, the validity of which is drawn in question, must be passed by a State, a member of the Union, and a public body owing obedience and conformity to its Constitution and laws. If public bodies, not duly organized or admitted into the Union, undertake, as States, to pass laws which might encroach on the Union or its granted powers, such conduct would have to be reached, either by the power of the Union to put down insurrections, or by the ordinary penal laws of the States or territories within which these bodies are situated and acting. But their measures are not examinable by this They are not a State, and cannot pass statutes within the meaning of the Judiciary Act. court on a writ of error. THI HIS case was brought up by a writ of error, issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court of the State of Michigan. It was an ejectment brought in the Circuit Court for the County of Wayne, State of Michigan (State court), by The Detroit Young Men's Society against the plaintiff's in error, to recover lot No. 56, in section one, in the city of Detroit. On the trial of the cause, in December, 1841, the plaintiffs below offered in evidence344*] *1. An Act of incorporation by the Legislature of the State of Michigan, passed on the 26th of March, 1836, entitled "An Act to incorporate the members of The Detroit Young Men's Society." To the admission of this act in evidence the defendants objected, but the court overruled the objection, and allowed it to be read to the jury; whereupon the defendants excepted. 4 of the governor and judges, dated on 13th March, 1807, conveying said lot No. 52 to Elijah Brush. To all which evidence the plaintiff objected, and the court sustained the objection; whereupon the defendants excepted. The defendants then offered a witness, to prove that he had applied to the governor and judges for information as to what lots were taxable, and that they had informed him that the lot in question was taxable in 1828; to the admission of which evidence the plaintiff objected, and the court sustained the objection; whereupon the defendants excepted. The defendants further offered parol evidence relative to the conduct and declarations of the governor and judges, to which the plaintiff objected, and the court sustained the objection; whereupon the defendants excepted. And on the trial of said issue, it further appeared in evidence, *from the records [*345 of the Secretary of State, that a Legislature of the State of Michigan, duly elected and returned, was organized and duly qualified, under the constitution of said State, on the third day of November, A. D. 1835, and that Stevens T. Mason, having been duly elected and returned, was on the same day duly qualified, and took upon himself the execution of the office of governor under the constitution of the said State of Michigan; that the aforesaid Act, entitled "An Act to incorporate the members, of The Detroit Young Men's Society," was approved by the said Stevens T. Mason on the 26th of March, in the year 1836, and who was at that time governor, acting under the constitution of the State of Michigan; that John S. Horner was Secretary of the late Territory of Michigan, and in the month of July, 1835, acted as governor of said territory; that he was the last person who exercised the functions of territorial governor of the Territory of Michigan; that the last official act of said Horner, as governor of the Territory of Michigan, in the office of the Secretary of State, is a The Act of Congress under which they acted proclamation, dated in the month of July, in was that of 21st April, 1806, ch. 43 (2 Statutes | the year 1835, but by reputation it appeared at large, 398). 2. A deed, bearing date on the 1st of July, 1836, executed by Solomon Sibley, Judge, George Morell, and Ross Wilkins, Judge, purporting to convey lot No. 56 to The Detroit Young Men's Society, the plaintiffs having first proved, by the witnesses to the deed, that, on or before that day, the said Sibley, Morell, and Wilkins were reputed to be, and acted as, judges of the Territory of Michigan, appointed by the authority of the United States. To the admission of this deed as evidence, the defendants objected, upon five grounds. But the court overruled the objections, and allowed the instrument to be read to the jury; whereupon the defendants excepted. The defendants then offered in evidence the following: 1. A deed from the treasurer of the County of Wayne to John Scott, dated 10th October, 1833, conveying the title for taxes; which deed the court refused to permit to be read in evidence, unless it were first shown that the title had passed out of the United States, and that the same had been regularly assessed and returned; to which refusal of the court the defendants excepted. 2. A resolution of the Governor and judges of the Territory of Michigan, dated on the 8th of September, 1806. that the basis of the town should be an equilateral triangle, having every angle bisected by a perpendicular line on the opposite side, and then proved, by a mathematical calculation, that lot No. 56 was the same as that which was known as lot No. 52 prior to 27th April, 1807; and then offered a resolution that the said Horner purported to act as territorial governor of Michigan until sometime in the year 1836. It further appeared, by the records produced by the late clerk of the late Supreme Court of the Territory of Michigan, that a session of said court purported to have been holden by George Morell and Ross Wilkins, as territorial judges, in the month of June, 1836, and adjourned the 30th of said month. And it further appeared, on the trial of said issue, that Solomon Sibley, George Morell, and Ross Wilkins purported to act as judges of the Territory of Michigan on the 1st of July, in the year 1836. And on the trial of said issue the defendants offered a witness, who was present at the time, to prove to the jury that Solomon Sibley and Ross Wilkins, acting as judges of the Territory of Michigan, held a session of the Supreme Court of said territory on the first Monday of January, in the year 1837, and of which the clerk of said Supreme Court made no record; to the admission of which the plaintiff, by his attorney, objected, and the court sustained the objection, and rejected said evidence, and the defendants, by their attorney, duly excepted thereto. |