delivered the opinion of the court.
, This was a writ of error to the Circuit Court of the United States for the southern district of New York:
, The view we have taken of this case, as it is exhibited in the record, renders an extended statement of the facts entirely unnecessary. It was an action of ejectment brought in the court below to recover the possession of a certain parcel of land, with the appurtenances, situated in the sixteenth ward of the city of New York, and described as lots sixty-four and sixty-five, according to a certain map made by George B. Smith. The declaration, which was in the usual-form, was filed in the Circuit Court for the southern district of New York on the 15th day of August, 1845, and the defendant, James H. Suydam, appeared, by his attorney, and pleaded that he was not guilty of. unlawfully withholding the premises claimed by the plaintiffs, as was alleged in the declaration, and tendered an issue, which whs duly joined by the plaintiffs., During the *431 pendency of the suit, and before the trial, two of the plaintiffs, being the two first named in the declaration, died, and the cause was regularly revived in the name of the survivors and the heirs of those deceased. At the adjourned session of the Circuit Court held at the city of New'York on the first Monday of October, 1849, the parties went to- trial on the general issue, and the jury returned a general verdict in favor of the plaintiffs; after the verdict, the cause was continued, as the record states, until the first Monday of October, 1850, and “the same day is given to the pai’ties to hear the judgment of the court,” and on that day the judgment was rendered on the verdict for the plaintiffs, that they do recover against the said James H. Suydam the possession of the said premises according to the said verdict of the jury, and for their damages, costs, and charges ; and a writ of possession was duly issued, directed to the marshal of the district. All these proceedings were in the usual course of judicial action, and were duly and formally entered on the record of the suit, and consequently furnish no ground of complaint whatever on the part of the present plaintiff, who was the defendant in the court below.. The declara-' tion contained on its face a good cause, of action, and the general. issue and joinder were regularly filed in the cause, and were entirely sufficient to make up a valid issue between the parties to the suit; and -the .verdict, which was strictly formal and legal, was in every respect responsive, to the issue formed. It appears that the jury found, in the very words of the issue, that the defendant was 'guilty of unlawfully withholding the premises claimed by the plaintiffs, as alleged in the declaration; and the judgment followed the verdict, and was founded upon it, for the premises as they were set forth and described in the pleadings. Every step in the cause, from the filing of the declaration to the issuing of the writ of possession, was in exact conformity to the most' approved practice and precedents in the Federal courts.
"We do not understand that the pleadings or the regularity of the proceedings are in any manner called in question, except as the foundation of a judgment, which it is insisted was erroneous, for reasons altogether aside from.any connection with mere matters of form. The real controversy between the parties has reference more especially to the right of possession, and consequently extends to the title of the premises described in the declaration, and necessarily involves the principal questions which were presented to this court at the December term, 1850, in the case of Williamson et al.
v.
Berry,
When a party is dissatisfied \yjth the decision of his cause in an inferior court, and intends" to seek a revision of the law applied, to the case in a superior jurisdiction, he must take care to raise the questions of law to be revised, and put the facts-on the record for the information'of the appellate tribunal ; and if he omits to do so in any of the methods known to the practice of such courts, he must be content to abide the consequences of his own neglect; Evidence, whether written or oral, and whether given to the court or to the jury, does not become a part of the record, unless made so by some regular proceeding at the time of the trial and before the rendition of the judgment. . Whatever the error may be, and in whatever stage of the cause it may hate occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law. A bill
*434
of exceptions undoubtedly is the safest method, as it is the most comprehensive one in its operation; and where the facts áre disputed, and cannot be arranged except from evidence admitted under the ruling of the court as to its admissibility, oftentimes it becomes the only effectual mode by which all the rights of the complaining party can be preserved. On the other hand, where there is no dispute in regard to the facts, and consequently no necessity for any ruling of the court in admitting or rejecting evidence, the same purpose.may be safely accomplished by a special verdict, or, according to the rule established in this court, by an agreed statement of facts. (United States
v.
Ellason,
It should be observed, however, that the rulings previously made by the court, in admitting or rejecting evidence during the progress of the trial, are no more revisable on a special case, as it is called, when the verdict is taken subject to the opinion of the court on an agreed' state of facts, than where the agreed statement is submitted directly to the court, without the intervention of the jury; and for the obvious reason that, in the one case as much as in the other, the foundation laid for the áction of the revisory tribunal is based upon the consent of the parties to the suit, and consequently the action of the appellate court must be confined to the facts as they were agreed, and as they appear in the record of the case. (Arthurs
v.
Hart,
In that case, it was agreed by the parties that the question of the admissibility, competency, and sufficiency of the evidence to maintain the action, should be submitted to the court, a,fid that, in considering the evidence, the court should draw *435 from it, so far as it was admissible and competent, every inference of fact and law which it would have been competent for a jury to have drawn from it; and that agreement was appended to an agreed statement of facts, on which the case was submitted to the determination of the Circuit Court in this District. Subsequently, it was brought into this court on a writ of error for revision, and was heard and determined upon the matters properly exhibited in the record; but this court, in giving judgment, took occasion to characterize the agreement as an unusual one, and denied that it was competent for parties to impose any such duties on this court, and expressly declared that the case was not to be drawn into precedent. Whenever the parties to a pending suit desire to place the facts of the case upon the record, so as to secure the right to have the law arising on the facts revised on a writ of error, they must adopt some one of the methods already suggested to effectuate that purpose, as there are no other effectual methods 'by which it can be accomplished.
Other modes are known to the practice of this court, by which the evidence produced against a party may in certain cases be put on the record either in whole or in part, according to the circumstances, so as to secure the right to have the questions of law arising upon it revised on a writ of er^or; but every proceeding of that kind is either so limited in its application or so tied up by conditions, that they are seldom of much practical importance, and are only referred to on the present occasion to confirm the proposition already advanced, that no ancillary step- in the cause is of any avail to a party as laying the foundation to support a writ of error, any farther than it has the effect to place on the record what otherwise would rest in parol. Formerly it was considered that a party might always demur to the evidence produced against him, as a matter of right; and while that was so, a demurrer to evidence was equally effectual with a bill of exceptions to the extent of its operation. (4 Chitt. Gen. Prac., 7; 2 Inst., 427.) The bill of exceptions was always the more comprehensive remedy, because it extended, as it still does, not only to the facts in the ease, but also.to the rulings of the court in admitting or rejecting evidence, and to the instructions given to the jury upon its legal effect. A demurrer to the evidence, while its operation in one respect is nearly the same as that of the bill of exceptions, in another is very different. It extends only to the evidence produced, as the term imports, and has no effect at all upon the rulings of the court by which it was received; and as a necessary consequence, where the error of the 'court consists in having admitted improper evidence, the effect' of a
*436
demurrer to it would be to waive the objection to the ruling, instead of laying the foundation to correct the error. (Bulkely
v.
Butler, 2 Barn. and Cress., 434.) A demurrer.to evidence is defined by the best text writers to be a proceeding by which the coui't in which the action is depending is called-upon to decide what the law is upon the facts shown in evidence, and it is regarded in general as analogous to a demurrer upon the facts alleged in pleading. When a party wishes to withdraw from the. jury the application of the law to the facts, he may, by consent of the court, demur in law upon the evidence, the effect of which is to take from' the jury and-refer to the court the application of the law to the facts, and thus the evidence is made a part of the record, and is considered by the court as in the case of a special verdict. A mere description of the proceeding is sufficient to show that it is the evidence, and nothing else, that goes upon the record. Since it was determined that a demurrer to evidence could'not be resorted to as a matter of right, it has fallen into disuse; and as long ago as 1813, it was regarded by this court as an unusual proceeding, and one to be allowed or denied by the court in the exercise of a sound discretion under all the circumstances of the case. (Young
v.
Black, 7 Cran., 565; United States Bank
v.
Smith,
Another method by which certain evidence may be incorporated into the record at the nisi prius trial is by oyer, which occurs where the plaintiff in his declaration, or the defendant in his plea, finds it necessary to make a profert of a deed, probate, letters of administration, or other instrument, under seal, and the other party prays that it may be read to him, which in'- such a case cannot, Us a general rule, be denied by the court; and the effect of the proceeding, in certain cases, is to make the instrument a part of the pleadings, and, consequent-, ly, to place it within the operation of a writ of error, which, in evei'y case wher.e the proceeding is according to the- course, of the common law, brings up the whole record; and in all these cases, as well as in the one first named, it is because the evidence, whatever it may be, is made a part of the record by the proceeding, that the questions of law arising upon it become a proper subject of revision on the writ of error. (1 Chitt. on Plead., 10th Am. ed., 431; 1 Tidd. Prac., 3d Am. ed., 586.) And the same effect is produced and the same object is attained when the defendant demurs to the declaration, or when either party demurs to a material portion of the pleadings on which the cause depends; and so i.t must have been understood by this court in Gorman et al.
v.
Lenox,
¥e have now adverted to the several methods acknowledged by courts of error, by which matters resting in parol at the trial in the subordinate tribunal may be put on the record, so as to lay a proper foundation for a revision of the legal questions arising out of them'.in the appellate court, and;there are no others which can be recognised in this court in cases where the proceedings are required to be-according, to the course of the common law. (Dougherty
v.
Campbell,
A writ of error is an original writ, and lies only when a party is aggrieved by some error in the foundation, proceedings, judgment, or execution, of a suit in a court of record, and is defined to be a commission, by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and, on such examination, to affirm or reverse; and it was expressly held by this court, in Cohens v. Virginia, (6 Whea., 410,) that the writ of error operated upon the record, and that its effect, under the judiciary act, was to hiring it into this court, and submit it to a re-examination; and it is also laid down by the best writers on pleading, that nothing will be error in law that does not appear on the face of the record, for matters not so appearing are not supposed to have entered into the consideration of the judges. (Steph. on Plea., 121.)
The writ of error in this case was issued on the eighteenth day of December, 1854, and bn the twenty-ninth day of January, 1855, an additional paper was filed, which in the transcript is denominated the “case,” and is the one which furnished. all the materials for the discussion at the bar. It purports to contain all the evidence introduced at the trial in the court below, as well that given by the defendant as thát given by th'é plaintiffs, and certain offers of proof on the part of the plaintiffs, which were objected to by the defendant, and excluded by the court. This mass of evidence, with the exhibits, filling .sixty pages of the transcript, has respect, on the one side or the other, to the title and right of possession to the premises described in the declaration, and comprises all the evidences of title which were before , this court on the former *438 :occasion; and, in addition thereto, certain’admissions of the parties and other, parol evidence. It is now drawn up in the form of a report of the judge who presided at the trial, and is signed by him, and is under seal; and, as we understand the endorsement, is certified to be correct by the counsel of the plaintiffs. The conclusion of the report is as follows:'
“ A verdict was then, by direction of the court, taken for the plaintiffs, for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to either party to turn this case-into a special verdict or bi|l of exceptions.”
' Whatever might have been the right of the parties under that report, it is too plain for argument, that no-one connected with its preparation could have regarded it either as a special verdict or a bill of exceptions. All that it professed to do was to give either party the liberty to turn the case into one or the other of those forms of proceeding; and it is a sufficient answer to any pretensions under the report to Say, that the change has not been made; that, for some reason unknown to this court, the right to make the change, if such it was, has never been exercised; and that it is now presented here in the form in which it was prepared when it is too late to make the alteration. And we also say, that this court cannot so far depart from the settled practice and,regular course of proceeding as to give an effect to the paper which .neither its contents nor terms would, warrant; nor can-we attempt to do for the plaintiff in error what it was his duty to have done at the trial, and before the writ of error'was sued out; nor are we prepared to admit that the option given to turn the case either into a special verdict or a bill of exceptions could have been exercised by either party under the concluding portion of that report, without the assent of .the judge who presided at the trial, and irrespective of his authority. On the contrary, we conclude that, “where a case shall be made with leave to turn the same into a special verdict or bill of exceptions, the party shall not be at liberty to do either, at his election, but the court may, if they think proper, prescribe the one which he shall adopt.” (Conk. Trea., 3d ed., p. 444.)
Nothing less than' the presence and assént'of the court, we think, can give any legal validity to a special verdict; and. in respect to a bill of exceptions, it must always be signed and sealed by the judge, or else it would be a nullity. (Phelps
v.
Mayer,
Other cases have been decided by this court, asserting the same general principle, that nothing can be considered upon a writ of error except what appears up'on the record; and one in particular, which, in that point of view, bears a very close analogy to the case under .consideration. We allude to the case of Minor
v.
Tillotson, (
. It is, certain, therefore, that there is no error .in the record; and the. only remaining question, is, what disposition ought to be made of the cause, -under the circumstances of the case ? .
An important distinction exists in respect to writs of error issued under the twenty-second section of-the judiciary act, from those -issued under the twenty-fifth section of the same act, 'which it becomes necessary, to notice in this- connection, in order to maintain a writ of error to this court from- a State court within the twenty-fifth .section of that act,-it must'appear on the face of the- record that some one, ,at least, of the questions . stated in that section did -arise in the State court, and that the question was decided in the. State court, as required in the section; and if -it. does not so appear in the record, then
*441
this court has no jurisdiction of the case, and in that event the writ of error must be dismissed, as this court, under those circumstances, has no power either to reverse or affirm the judgment brought up for revision; and such was the state of the record in Inglee
v.
Coolidge, and accordingly the writ of error was dismissed. The writ of error, however, in this case issued under the twenty-second section of the judiciary act, in respect to which a different rule prevails, as will be seen by attending to the language of the act. That section provides, in effect, that final judgments in a Circuit Court brought there by original process may be re-examined, and reversed or affirmed, in this court, upon a writ of error; and where the cause is brought into this court upon a writ of error issued under that section, and- all the proceedings are regular, and no question is presented in the record for -revision, it follows, by the express words of the section, that the judgment of the court must be affirmed. .Beyond question, the iecord in this case exhibits every fact required by the section to give this court jurisdiction of the cause, and in strict compliance with the terms of the act. The action was originally brought in the Circuit Court for the southern district of New York, and the record shows a sufficient declaration duly filed in court — a proper .and valid issue between the parties — a perfect finding by the jury upon the issue joined, and a regular judgment on the verdict, which was final, unless reversed; and certainly these are all the requisites of a record, according to the requirements of the twenty-second section of the judiciary act, to entitle a party to retain the judgment which has been given in his favor. (Minor et al.
v.
Tillotson,
When the record exhibits such a state of facts, it is then competent for this court to remand the cause for a new trial, in order that the finding of the jury may be perfected. The record itself in such a case shows the imperfection which it is thn pui'pose of the new trial to remedy, and it constitutes the basis of the action of the court in giving the order tO’ send the cause down to a rehearing. No such imperfection appears on this record. ^ On the contrary, the record shows a perfect' finding of the jury, and, on a careful inspection of the tran *442 script, we are unable to discover error in any part of the proceedings.
The judgment of the Circuit Court is therefore affirmed, with costs.