KEARNEY

v.

DENN

Mr. Justice SWAYNE recapitulated certain parts of the case and delivered the opinion of the court.

In this case our attention has been called to two alleged errors:

I. That the court below overruled the motion of the plaintiffs in error to dismiss the suit.

After the case was remanded from this court to the Circuit Court, the plaintiffs’ lessors appeared in that court and suggested the death of Richard S. Blackburne, the original defendant, and prayed leave to make new defendants. Leave was given accordingly. This was done on the first Monday of April, 1868, and the cause was thereupon continued to the first Monday of November following. On the latter day a written agreement, signed by William Schley, Esq., as the counsel for the plaintiffs in error, and by R.

J. Brent, Esq., as the counsel for the lessors of the plaintiffs, was filed in court. It was to the effect that the death of the defendant, Blackburne, havibg been suggested, and the plaintiffs in error (naming them) being interested on the part of the defendant, Blackburne, in the property mentioned in the declaration, the clerk was requested to enter their appearance by Mr. Schley, as their attorney, “ they being alone interested as defendants in said property.” A further agreement was signed and filed by the same counsel “ that the original pleadings shall stand mutatis mutandis.” The ease was thereupon further continued to the first Monday of April, 1809, when it was again continued to the first Monday of November following. On that day the plaintiffs in error appeared by their counsel and filed a motion in writing to dismiss the case, for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J.

L. Henry, and Kate Kearney Henry, his. wife, had been during the same period, citizens and residents of the State of Maryland, and that the court had, therefore, no jurisdiction to hear and decide the cause. The court overruled the motion, but upon what ground does not appear. It is noted on the record that the plaintiffs in error “ reserve their exception to the decision of the court.” This is all that the record contains touching the motion. For aught that appears to the contrary, the court may have overruled it, because the facts of the residence of the defendants a3 stated in the motion were not proved, or because it was proved that they resided in a State or States other than Maryland. Error must be shown. It is never presumed. We cannot take cognizance of the exception reserved upon the record, any more than we could of an exception noted in like manner to the admission of improper testimony or misdirection by the judge to the jury, in the trial of a cause. In order to bring the facts properly before us a bill of exception, setting forth what was proved and the decision of the court, should have been taken. As the record stands we cannot examine the subject. We have, therefore, not had occasion to consider the learned arguments submitted by the Counsel of the respective parties upon the merits of the motion.

We are all of the opinion that the introduction of the new defendants was an elongation of the original action, and not the institution of a new suit.

II. The second alleged error relates to the transcript of the record in the Orphans’ Court of Prince George’s County. It appeared by the transcript that Blackburno, as the next of kin to Thomas B. Crawford, deceased, applied to the court for letters of administration upon the estate of the decedent. George T. Crawford, claiming to be the son of the deceased, made a like application. The court ordered to be tried an issue involving the question whether Thomas B. Crawford and Elizabeth Taylor, the mother of George T. Crawford, were ever lawfully married.

The jury found in the negative, and judgment was entered accordingly. The case was removed to the Court of Appeals of the State, and that court affirmed the judgment. When this case, as it is now before us, was tried in the court below, George T. Crawford had died, and his children were not made parties to the suit. Upon the trial the plaintiffs in error offered the transcript in evidence as bearing, upon the question of the marriage of Elizabeth Taylor and the legitimacy of her other children. The court excluded it from going to the jury, and the plaintiffs in error excepted.

The effect of the verdict and judgment here in question were fully considered when this case was formerly before us. We then held that they were an estoppel , as to George T. Crawford and barred his right of action, but that they did notin anywise affect the rights of the other children, because they ivere not parties to the proceeding.* We have no doubt of the soundness of these conclusions, and we feel no disposition to review or reverse them.. It is unnecessary to pursue the subject further. No error was committed in rejecting the transcript.

Judgment affirmed.

*

Blackburne v, Crawford, 3 Wallace, 190.