LESSEE OF SAMUEL REED, PLAINTIFF IN ERROR,
vs.
WILLIAM MARSH, DEFENDANT IN ERROR.
Supreme Court of United States.
*154 Mr. Vinton, for the defendant in error.
*155 Mr. Chief Justice TANEY delivered the opinion of the Court.
This case is brought before the Court by a writ of error to the Supreme Court of the state of Ohio, sitting for the county of Scioto, under the 25th section of the judiciary act of 1789. A motion is now made to dismiss the writ upon the ground that the case, as presented by the record, is not one in which this Court have the right to revise, by writ of error, the judgment of a state Court.
It appears from the record, that an action of ejectment for a certain tract of land was brought by the plaintiff against the defendant, and finally tried, and decided in the Supreme Court of the state, sitting for Scioto county. The declaration is in the usual form, to which the plea of not guilty was entered; and upon the trial, the jury found a general verdict for the defendant, upon which the Court entered judgment in his favour.
There was no bill of exception taken in the case; and according to the judiciary system established in Ohio, a bill of exception could not at that time be regularly taken, when the trial was had in the Supreme Court of the state. That Court consists of four judges, two of whom are authorized to hold the Court in the different counties; but at the close of each circuit, the four judges are required to meet in bank, at the seat of government, and decide all questions reserved for their consideration on the circuit: and when the decision is made in bank, each cause is certified to the county from which it was brought, and the judgment is there entered.
In the case before us a new trial was moved for, and among other reasons filed in support of the motion, is the refusal of the Court to give certain instructions to the jury, which were requested by the counsel for the plaintiff; and we gather from the record, though not very distinctly, that this motion was reserved and heard in bank, and there overruled. The reasons assigned by the plaintiff for a new trial, and the title papers to which they refer, have been transmitted and certified to this Court, by the clerk, together with the record of the judgment. It is, however, unnecessary to mention them particularly; because if the points set forth in the motion were raised at the trial and decided by the Court, then it is very clear that the construction of certain statutes of the United States was drawn in question, and the decision in the state Court was against the title claimed under them by the plaintiff. But the difficulty is whether these facts are sufficiently authenticated by the record. Can we receive the certificate of the clerk, that certain papers were offered in evidence, and the statement of counsel upon a motion for a new trial, that certain instructions were refused by the Court, as sufficient evidence of the facts they set forth; and proceed, upon that ground, to take jurisdiction and revise the judgment of the state Court? We think not. In the case of the lessee of Fisher vs. Cockerell. 5 *156 Peters 254, the Court said, "In cases at common law, the course of this Court has been uniform, not to consider any paper as a part of the record which is not made so by the pleadings, or by some opinion of the Court referring to it. This rule is common to all Courts exercising appellate jurisdiction, according to the course of the common law. The appellate Court cannot know what evidence was given to the jury, unless it is spread on the record, in a proper legal manner. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make that document or that evidence a part of the record, so as to bring it to the cognizance of this Court."
We think the doctrine in that case is entirely correct. The certificate of the clerk cannot make the papers above mentioned a part of the record; nor can the statement of counsel in the motion for a new trial, authorize us to say that certain questions were raised, and certain opinions given upon such evidence. It does not follow that the Court admitted that the opinions imputed to them were given at the trial, because they have not disavowed them in overruling the motion. On the contrary, it might sometimes happen that such a motion would be overruled, because the Court had not given the instruction mentioned in the motion. There is therefore nothing in the record that could warrant us in assuming that the papers referred to were offered in evidence; nor that the opinions ascribed to the Court were actually given. These facts should in some mode or other be authenticated by the Court itself. This Court have constantly adhered to this rule, and the cases upon the subject were carefully reviewed and considered, in the case of Crowell vs. Randell, 10 Peters, 368; and the rules there stated must be considered as too firmly settled to be shaken.
The writ of error in this case must therefore be dismissed.
This case came on to be heard on the transcript of the record from the Supreme Court of the state of Ohio in and for the county of Scioto, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this Court that the writ of error be, and the same is hereby dismissed, for want of jurisdiction.