delivered the opinion of the court, and after stating the case, proceeded as follows :
A motion has been made to dismiss the writ oí error, upon the ground that there is nothing apparent upon the record which brings the case within the appellate jurisdiction of this court, under the 25th section of the judiciary act of 1789. It is conceded, on all sides, that this is entirely correct, unless the report of the judge who tried the cause, which contains a statement of the facts, is to be considered as A part of the record. And we are unanimously of opinion that it cannot he so considered. It is not like a special verdict or a statement of facts agreed of record, upon which the court is to pronounce its judgment. The judgment is, rendered upon a general verdict, and the report is mere matter in pais, to regulate the discretion of the court as to the propriety of granting relief, or sustaining a motion for a new trial.
The writ of error must, therefore, be dismissed.
Writ of error dismissed without costs. f
2 Dow’s Rep. 480. Smith et al. v. Robertson et al. This was an insurance cause appealed from the court of session in Scotland to'the House of Lords, having been originally brought in the c.ourt of admiralty in Scotland. In deliVering the judgment Of the house, affirming the decree of the court below, Lord Eldon stated, that “ their Lordships were aware, and it waS due to the court of sessioni to mark the fact, that these cases were all heard there in such a course, that there was no obstacle in point of form to prevent their coming before their lordships, By the old mode of proceeding in Westminster Hall, forty years-before he had set foot in it, the practice was, to have special verdicts found, and then the case might come upon error to the House of Lords. But this practice had been altered by Lord Mansfield,. upon the whole; with considerable utility; and now for the sake of expedition, instead of entering the matter at length upon the record in a special verdict, special cases were mide for the dpinioh of the court; and nothing appearing on the record but the general verdict, the subject might have np door by which to come Into that house. But in the court of session, as he understood their prao tice, the cases were heard in such a form, that the subject could not be prevented from coming to heir lordships) and, therefore, it was no discredit to the court of session that so many of their decisions in these insurance causes were brought under the .review of thoftr lordships.”
Notes
Costs will be allowed upon the dismission of a writ of error, for want of jurisdiction, if the original defendant be also defendant in error. Winchester v. Jackson et al. 3 Cranch, 515.