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and the facts in order to authorize a writ of error to its ent. A statement of facts signed by counsel and filed idgment is insufficient. Bethell v. Mathews, 13 Wall. 1. (Dec., 1871.) Under the act of Congress of March 3, uthorizing the trial of facts by the Circuit Courts, and g that the findings of the court upon them shall have he effect as the verdict of a jury, this court, sitting as

of error, cannot pass, as it does in equity appeals, he weight or sufficiency of evidence. Dirst v. Morris, 1. 185. f the court chooses to find generally for one side or er, instead of making a special finding of the facts, ing party has no redress, on error, except for the ul admission or rejection of evidence. Ib. Dec., 1872.) The parties ... agreed to waive a jury

submit all questions of fact to the court. ... The und for the plaintiff generally. , that the defendant could not, under the agreement, ny questions as to the effect of evidence, &c., in this with a view to making this court find as true the facts h in the special plea ; which plea, as above mentioned, , was declared to be no defence. City of Richmond v. 15 Wall. 430. (Dec., 1872.) Although, under a stipulation in writing by the parties to the suit, and filed with the clerk of the in pursuance of the act of March 3, 1865, which gives finding of the court (which may be either general or ) the same effect as the verdict of a jury, this court here the finding is special, consider the sufficiency of ts found to support the judgment, yet, returning in ord all the evidence in the case, where the court, in on of assumpsit on a check or draft, does not find what idence proves, nor any ultimate fact except one stated judgment, to wit, “that the defendant did not assume mise as the plaintiff in declaring has alleged,” — does

not give the court jurisdiction to consider such sufficiency. Dickinson v. The Planters' Bank, 16 Wall. 250.

57. The fact that the court below, in an opinion which accompanied the judgment, has stated some of the facts of the case, does not alter things; the facts stated not being stated as a special finding, but rather advanced to show why the judge came to the conclusion that the alleged promise had not been proved. 16.

58. (Oct., 1873.) The doctrine reasserted, as often adjudged in this court before, that where a case is tried by the Circuit Court, under the act of March 3, 1865, if the finding be a general one, this court will only review questions of law arising in the progress of the trial and duly presented by a bill of exceptions, or errors of law apparent on the face of the pleadings. Insurance Co. v. Folsom, 18 Wall. 237.

59. (Oct., 1873.) A judgment affirmed, because there was no question of law which this court could consider, in a case where a trial by jury was waived in writing, and the case submitted to the court, where the finding of the court was general ; where the bill of exceptions embodied all the testimony in the case, but where no exception was taken to the admission or rejection of testimony, or to any ruling of the court on the trial, and where no question was raised in the case, on the pleadings. Town of Ohio v. Marcy, 18 Wall. 552.

60. (Oct., 1873.) The case of Folsom v. The Insurance Company (18 Wall. 237), and the numerous cases there cited, p. 211, affirmed, and the doctrine again declared, that where a jury is waived and the issues of fact submitted to the Circuit Court, under the act of March 3, 1865 (quoted in the report of the case cited, p. 288), this court will not review the finding of the court, where it is general and unaccompanied by any authorized statement of facts; and that in the case of such general finding, “ nothing is open to review, by the losing party, under a writ of error, except the rulings of


ircuit Court in the progress of the trial; and that the ?, ' rulings of the court in the progress of the trial,' does clude the general finding of the Circuit Court, nor the sions of the Circuit Court, embodied in such general 3."

Cooper v. Omohundro, 19 Wall. 65. (Oct., 1873.) The doctrine of the preceding case (of

v. Omohundro] reaffirmed. Declared further, and in ation, that a mere report of the evidence is not such a

finding or authorized statement of the case as will his court to pass upon the judgment given. Crews v. - 19 Wall. 70. (Oct., 1873.) No error can be assigned on a general

Tioga Railroad v. Blossburg f. Corning Railroad, 20 138. (Oct., 1874.) The doctrine established and the rules

wn in Flanders v. Tweed (9 Wall. 130), in Norris v. 2 (ib. 125), and in other cases decided since, as to the

mode of bringing here for review, questions arising in vhere a jury is waived and a cause submitted to the under the provisions of the act of March 5, 1865, red and adhered to. Insurance Co. v. Sea, 21 Wall. 158. The rules themselves again set forth in detail. Ib. (Oct., 1875.) Where a trial by the court below was ad under the act of March 3, 1865 (13 Stat. 501), the s excepted to in the progress of such trial cannot be ed here. Gilman v. I. f. M. Telegraph Co., 1 Otto,

(Oct., 1875.) Held, 1. That the finding being upon a question of law and fact, and largely depending for its tness on surveys not produced here, and there being -t in the record, was not open to inquiry. R. River e Co. v. K. P. Railroad Co., 2 Otto, 316. (Oct., 1875.) A special finding by the court upon of fact, where the parties or their attorneys have duly - stipulation waiving a jury, has the same effect as a


verdict, and is not subject to review by this court, except as to the sufficiency of the facts found, to support the judgment. Tying v. Grinnell, 2 Otto, 467.

68. (Oct., 1877.) Where the court tried the issues of fact, and its opinion, embodying its findings and the conclusions of law thereon, was filed concurrently with the entry of the judgment, but there was no formal finding of facts, and the court, at the next following term, upon a rule awarded, and, after hearing the parties, made an order that a special finding, with the conclusions of law conformable to that opinion so filed, be entered nunc pro tunc, and made part of the record as of the term when the judgment was rendered, - Held, that the order was within the discretion of the court; and that by it, such special finding became a part of the record of the cause, and that the judgment upon it is, without a bill of exceptions, subject to review here. Insurance Co. v. Boon, 5 Otto, 117.

69. (Oct., 1878.) Where words in an act limiting the reviewing power of this court, in cases where the facts have been found below, “to a determination of the questions of law arising upon the record and to the rulings of the court excepted to," have acquired, through judicial interpretation, a definite meaning, by which that power, on exceptions, is confined to questions of law, they will, when found in a subsequent act, be presumed to be used in the same sense, unless a contrary intention appears from the act. The Abbotsford, 8 Otto, 410.

70. (Oct., 1879.) Where the Circuit Court, under a written stipulation of the parties, tries the issue, its special finding should set forth the ultimate facts, and not the evidence establishing them. Mining Co. v. Taylor, 10 Otto, 37.

71. (Oct., 1879.) The finding of the Circuit Court upon a question of fact cannot be reviewed on a writ of error. United States v. Dawson, 11 Otto, 569.

ment of that court must be affirmed. court must presume that the court below founded its judgholder received it, and must therefore affirm the judgment of the court below. Prentice v. Zane, 8 How. 470. party claims a trial by jury, the whole case is decided by the

Judgment or Decree, on Review. Sec. 701. The Supreme Court may affirm, modify, or reverse any judgment, decree, or order of a Circuit Court, or District Court acting as a Circuit Court, or of a District Court in prize causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require. The Supreme Court shall not issue execution in a cause removed before it from such courts, but shall send a special mandate to the inferior court to award execution thereupon. 24 Sept., 1789, c. 20, s. 24, v. 1, p. 85. 3 March, 1803, c. 40, s. 2, v. 2, p. 244. 30 June, 1864, c. 174, s. 13, v. 13, p. 310. 1 June, 1872, c. 255, s. 2, v. 17, p. 196.

SECTION 701. AFFIRMANCE. – DECISIONS 1-22. 1. (Feb., 1826.) Where the court is equally divided upon a writ of error, the judgment of the court below is to be affirmed. Etting v. Bank of United States, 11 Wheat. 59.

2. (Jan., 1845.) An affirmance by a divided court, either upon a writ of error or appeal, is conclusive upon the rights of the parties. Washington Bridge Co. v. Stewart, 3 How. 413.

(Jan., 1816.) The “right of the cause and matter in being with the plaintiff in the court below, the judg

Stockton v. Bishop, 4 (Jan., 1850.) But the parties below agreed to submit Cause to the court, both on the facts and the law. This

upon proof of the fact as to the manner in which the (Dec., 1851.) By the Louisiana practice, if neither



How. 155.

4. the



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