writ of error does not operate only upon that part of the record. Wherever an error is apparent on the record, it is open to revision, whether it be made to appear by a bill of exceptions, or in any other manner. Suydam v. Williamson, 20 How. 428.

24. A demurrer to evidence makes the evidence a part of the record. Ib.

25. So where oyer of any instrument is prayed, or there is a demurrer to any part of the pleadings. Ib.

26. (Dec., 1859.) Where streets were opened in New Orleans, a sum of money, as indemnity, was allowed to G., as being the supposed owner of the property condemned.

D. claimed to be the owner of the property, and brought a suit against the city for the money; in which suit G. was cited, for the purpose of having the question decided to whom the property belonged, and judgment was rendered against the city in favor of D.

Afterwards G. brought a suit in the Circuit Court of the United States, and the city pleaded the former judgment in

bar.

But, as these facts were not given in evidence upon the trial, nor did the judge make any statement of facts found by him, the record presents only the judgment against the city, in favor of G.; and there is no ground of error upon which this court can reverse the judgment. City of New Orleans v. Gaines, 22 How. 141.

27. (Dec., 1860.) Docket entries in the courts of the District of Columbia, as in Maryland, stand in the place of, and perhaps are, the record, and receive all the consideration that is yielded to the formal record in other states. W. A. & G. Steam Packet Co. v. Sickles, 24 How. 333.

28. (Dec., 1860.) Whether this court has or has not jurisdiction under the twenty-fifth section of the Judiciary Act, may be ascertained either from the pleadings, or by bill of

exceptions, or by a certificate of the court.

Ohio, 24 How. 413.

Medberry v.

29. But the assignment of errors, or the published opinion of the court, cannot be reviewed for that purpose. They make no part of the record proper, to which alone this court can resort to ascertain the subject-matter of the litigation. Ib.

30. (Dec., 1868.) A writ of error dismissed, where the transcript contained only a blank form of a certificate of authentication, without the seal of the court below, or the signature of its clerk. Leave was, however, granted to the plaintiff in error to withdraw the record, but not for the purpose of having it perfected and returned here and placed on the docket, as if it had been regularly filed. Blitz v. Brown, 7 Wall. 693.

31. (Dec., 1872.) Where objection is made in this court that a court below allowed a clerk and marshal there excessive fees, but the record, while showing what fees were allowed, furnishes no means of ascertaining what services were rendered by the clerk or marshal, nor any means of determining whether the fees were or were not in excess of what is authorized by law, the objection cannot be sustained. Flanders v. Tweed, 15 Wall. 450.

32. (Dec., 1872.) This court cannot decide that a charge is wrong, which submits it to the jury to say whether a wharf was a public place, upon which all persons were accustomed to come and go at pleasure, and were by law permitted so to do, when the record does not contain the evidence upon which the question arose. The court cannot assume that the charge was erroneous. Railroad Co. v. Hanning, 15 Wall. 649.

33. (Dec., 1872.) Evidence or statements of fact not contained in the bill of exceptions, nor made a part thereof, though appended thereto, will not be regarded by the court. Bank v. Kennedy, 17 Wall. 20.

34. (Oct., 1874.) Where the record before the court, on a case from a state court, shows a declaration, pleas to it, issue

on them, verdict on those issues, and judgment on the verdict, without allusion to any demurrer, the court will not refer to opinions in books of printed reports of the state court to contradict the record, and to show that there was a demurrer to the declaration, and that judgment overruling the demurrer was given. Edwards v. Elliott, 21 Wall. 532.

35. (Oct., 1877.) Where the issues are tried by the court, its finding belongs to the record as fully as does the verdict of a jury. Insurance Co. v. Boon, 5 Otto, 117.

36. (Oct., 1878.) An affidavit for the continuance of a cause does not become a part of the record, so that effect can be given to it during the trial, unless it is properly introduced as evidence, for some legitimate purpose, by one of the parties. Campbell v. Rankin, 9 Otto, 261.

CHARGE TO JURY.

37. (Feb., 1822.) The charge is spread in extenso upon the record, a practice which is unnecessary and inconvenient. Evans v. Eaton, 7 Wheat. 426.

38. (Jan., 1830.) The practice of bringing the whole of the charge of the court, delivered to the jury in the court below, for review before this court, is unauthorized, and extremely inconvenient, both to the inferior and to the appellate court. With the charge of the court to the jury upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to be addressed to the jury, merely for their consideration as the ultimate judges of the matters of fact, and are entitled to no more weight or importance than the jury, in the exercise of their own judgment, choose to give them. They neither are, nor are understood to be, binding on them, as the true and conclusive exposition of the evidence. If, in summing up the evidence to the jury, the court should mistake the law, that would justly furnish a

ground for exception. But the exception should be strictly confined to that misstatement; and by being made known at the moment, would often enable the court to correct an erroneous expression, so as to explain or qualify it in such manner as to make it wholly unexceptionable, or perfectly distinct. Carver v. Astor, 4 Pet. 1.

39. (Jan., 1831.) Exceptions taken on the trial of a cause before a jury, for the purpose of submitting to the revision of this court questions of law decided by the Circuit Court during the trial, cannot be taken in such a form as to bring the whole charge of the judge before this court; a charge in which he not only states the results of the law from the facts, but sums up all the evidence. Ex parte Crane, 5 Pet. 190.

40. The decision of this court in the case of Carver v. Jackson, ex dem. of Astor (4 Pet. 80), re-examined and confirmed. Ib.

41. (Jan., 1832.) The bringing up with the record of the proceedings in the Circuit Court, the charge of the court at large is a practice which this court has often disapproved and deems incorrect. Conard v. Pacific Ins. Co., 6 Pet. 262.

effectually suppress.

42. (Jan., 1833.) The whole charge of the Circuit Court was brought up with the record. BY THE COURT. This is a practice which this court have uniformly discountenanced, and which the court trusts a rule made at the last term will Magniac v. Thompson, 7 Pet. 348. 43. (Jan., 1834.) This court have frequently remonstrated against the practice of spreading the charge of the judge at length upon the record, instead of the points excepted to, as productive of no good, but much inconvenience. Gregg v. Sayre, 8 Pet. 244.

44. (Jan., 1846.) The whole charge of the judge to the jury is incorporated into this record. This mode of making up the error books is exceedingly inconvenient and embarrassing to the court, and is a departure from familiar and established practice. Zeller v. Eckert, 4 How. 289.

45. (Dec., 1863.) Where an instruction, though not in the best form of words, is sufficiently intelligible, and has been rightly interpreted by the jury in reference to the evidence, a reversal will not be ordered in the indulgence of a nice criticism. Rogers v. The Marshal, 1 Wall. 644.

46. (Dec., 1864.) Where the special and general counts of a declaration set forth the same contract, and an instruction directed to the legality of the contract is refused with reference to the special counts, it is unnecessary, in order to bring up to this court for consideration the writing thereon, to ask the instruction with reference to the general counts, to which it is equally applicable; although upon the special counts the verdict passed for the plaintiff in error. Company v. Norris, 2 Wall. 45.

Tool

47. (Dec., 1869.) Where the instructions given to the jury are sufficient to present the whole controversy to their consideration, it is no cause for the reversal of a judgment, to show that one or more of the prayers for instruction, presented by the losing party, and not given by the court, were correct in the abstract. The Schools v. Risley, 10 Wall. 91.

48. (Oct., 1875.) Where the charge of the court below covers the whole ground necessary to enable the jury to apply the law to the matters in issue, and is not subject to any just exception, so that, if there be any error in the proceedings, it was committed solely by the jury, this court has no jurisdiction to retry the cause, as if it were both court and jury, but must affirm the judgment. Woodruff v. Huff, 1 Otto,

596.

49. (Oct., 1876.) The omission of the judge to instruct the jury on a particular aspect of the case, however material, cannot be assigned for error, unless his attention was called to it, with a request to instruct upon it. Mutual Life Ins. Co. v. Snyder, 3 Otto, 393.

50. (Oct., 1876.) Counsel cannot, in requests to the court