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This statute proceeds upon the theory that condensed when carried to a ledger account, and the officers of the United States shall make up the results of many items or of some considera212*] the account *of every revenue officer, that ble period of time, may be stated in a briefer it shall adjust the same on its books, and that form than they stood upon the original entries. the account thus stated and adjusted shall stand The means of particular information are open as and for the sum for which such officer shall be to either party. We see no objection on this liable to the Government. This, no doubt, is ground to the evidence now presented, and are subject to correction by such competent evidence of the opinion that there was error in its excluas may be produced. In other words, the state- sion. ment is prima facie evidence only, not absolute There was error also in excluding the evidence and conclusive.

of the accounts rendered by Barrett, the princiIn furtherance of this idea it is the duty of pal. They seem to be complete, not partial or the Comptroller at once to institute suit for the fragmentary, as alleged, and being statements recorery of the balance thus found and stated. made by him to the Government in the performA second result, and one indispensable to the ance of his official duty, they are evidence existence of the theory, is, that the books shall against the party making them not only, but his be evidence of the truth of the amounts thus sureties as well, and against third persons in stated and declared to be due to the United privity with him. The authorities place the States. The Act, therefore, provides that a rule upon the grounds: 1, that the entries transcript from these books and proceedings made are against the interest of the party mak-, shall be admitted in evidence, and that, there ing them; and 2, that a surety is bound by the upon, the court is authorized to proceed to acts and declarations of his *principal, (*214 judgment and execution.

being within the scope of the business, as a part In the present case "copies of the report of of the res gestæ. | Phil. Ev., 4th Am. ed., p. the first auditor,” numbered respectively 5,688, 307, and note, also, pp. 525, 526; Plaxton v. etc., and eight in number, were offered in evi. Dare, 10 Barn. & C., 17; Middleton v. Melton, dence. The bill of exceptions states that no 10 Barn. & C., 317. objection was made to the manner in which The judgment must be reversed and a new they were certified.

trial had. The suggestion that the Act is applicable to a defaulting principal only, and not to a surety, is not pressed and need not be considered.

The objection that the reports were frag. mentary and incomplete is not sustained by the THE WESTERN UNION TELEGRAPH COMfacts. As presented in the record each report is

PANY, Piff. in Err., complete and perfect in itself. Each report contains all upon the subject during the time

CHARLES EYSER. that it purports to represent. In the aggregate they cover the whole period of Barrett's service.

(See S. C., 19 Wall., 419-433.) The statute says that a transcript from the books shall be admitted as evidence. A tran Supersedeas bond-writ of error, when filed. script or a transcribing is substantially a copy. A copy from the books, and not of the books, 1872, the supersedeas bond may be executed within

1. Under the 11th section of the Act of June 1, shall be admissible in evidence. An extract sixty days after the rendition of the judgment, and from the books, a portion of the books, when later, with

the permission of the designated judge. authenticated to be a copy, may be given in evi before, or simultaneously with, the filing of the

2. The writ of error may be served at any time dence. While a garbled statement is not evi. bond. dence, or a mutilated statement, wherein the

[No. 665.] debits shall be presented and the credits suppressed, or perhaps a statement of results Submitted Dec. 12, 1873. Decided Dec. 15, 1873. 213*] *only, it still seems to be clear that it is not necessary that every account with an indi. vidual, and all of every account, shall be tran- ERROR to the Supreme Court of the Terscribed as a condition of the admissibility of any ritory of Colorado. one account. The statement presented should The case is stated by the court. be complete in itself, perfect for what it pur- See, also, 91 U. S. 495, 23 L. ed. 377. ports to represent, and give both sides of the ac- Mr. J. H. Ashton, for plaintiff in error. count as the same stands upon the books. Gratiot v. U. 8., 15 Pet., 356, 370; Hoyt v. U. 8., 10 Mr. Justice Swayne delivered the opinion of How., 109, 132; U. 8. v. Eckford, 1 How., 250. the court: Nor is the objection, that the reports charge

This is an application for a writ of superseBarrett with gross sums and with balances deas or an order, to the Supreme Court of Col. without giving details, sustained by the facts. orado Territory, and to the District Court of the

The reports are made up with much particu. First Judicial District in and for the County of larity, and give the items on each side of the Arapaho, in that Territory, commanding that account. It is not a case of a certificate of bal- further proceedings * upon the judgment (*426 ances merely. We are not authorized, however, in this case be stayed pending the writ of error to regulate the manner in which the departo whereby the judgment was brought into this ments shall keep their books, or to prescribe the court for review. The judgment was affirmed minuteness of the detail. The items in these by the Supreme Court of the Territory on the reports are manifestly made up from state- 6th of September, 1873. On the 8th of October ments and details of the daily business fur. ' following, the defendant sued out a writ of ernished by the collector. They are necessarily ror returnable to this court. It was duly served



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and returned. On the day last mentioned a ci- | the permission of a justice or judge of the said
tation was served on the adverse party, and a appellate court.”
supersedeas bond in the sum of $12,000, condi- These provisions are remedial and, therefore,
tioned and approved according to law, was filed to be construed liberally. So far as there is any
in the proper office. The plaintiffs in error rep. conflict with the pre-existing rules, the latter
resent in their petition that the defendant in must yield. The intention of the law-maker
error has applied to the Supreme Court of the constitutes the law. U. 8. v. Freeman, 3 How.,
Territory for an order that execution issue on 565. What is clearly implied in a statute is as
the judgment, notwithstanding the writ of error effectual as what is expressed. U. 8. v. Babbit,
'and the supersedeas bond, and that they are ap- 1 Black, 61, 17 L. ed. 96. It is expressly de-
prehensive such an order will be made. Hence clared that the supersedeas bond may be exe-
this application here.

cuted within sixty days after the rendition of | The 23d section of the Judiciary Act of 1789, the judgment, and *later, with the per- [*428 1 Stat. at L., 73, declares “that a writ of error, mission of the designated judge. It is not said as aforesaid, shall be a supersedeas and stay of when the writ of error shall be served. Its isexecution in cases only where the writ of error suance must, of course, precede the execution is served by a copy thereof being lodged for the of the bond; and, as the judge who signs the adverse party in the clerk's office where the citation is still required to take the bond, we judgment remains, within ten days, Sundays ex- think it is sufficiently implied that it may be clusive, after rendering the judgment or pass- served at any time before, or simultaneously ing the decree complained of.'

with, the filing of the bond. Indeed, the givThe 2d section of the Act of 1803, 2 Stat. at ing of the bond alone is made the condition of L., 244, makes appeals “subject to the same the stay. The section is silent as to the writ. rules, regulations and restrictions as are pre- A construction which requires the service to be scribed in law in cases of writs of error." still within ten days from the rendering of the

The 22d section of the Act of 1789 requires judgment, is, we think, too narrow. It is sus"that every justice or judge signing a citation tained by no sufficient reason, and would largeon any writ of error, as aforesaid, shall take ly defeat the salutary purposes of the statute. good and sufficient security that the plaintiff in The execution, approval, and filing of the bond error shall prosecute his writ to effect, and an. are substantial. The filing of the writ is mutswer all damages and costs if he fail to make ter of form. Form, under the circumstances, his plea good.”

must not be allowed to defeat substance, where
Where the judgment or decree is for money, the consequences would be of so serious a char-
not otherwise secured, the bond “must be for acter. The application of the plaintiffs in error
the whole amount of the judgment or decree, is founded upon this section. As we construe
including just damages for delay and costs and it, their case is within it. The order asked for
interest on the appeal.” 29th Rule of this court. will be directed to issue, unless this opinion
427*] And such bond *must be approved and shall render that procedure unnecessary.
filed within the ten days prescribed for the serv-
ice of the writ of error. Adams v. Law, 16

Mr. Justice Clifford, dissenting:
How., 144; Hudgins v. Kemp, 18 How., 533, 15 Writs of error at common law, when bail was
L. ed. 512.

duly entered, operated as a supersedeas, but Such was originally the state of the law upon the 23d section of the Judiciary Act provides this subject. It frequently subjected parties to that a writ of error shall be a supersedeas and great inconvenience and sometimes to serious in- stay execution in cases only where the writ of jury. If the writ were not served and the bond error is served by a copy thereof being lodged given within ten days from the rendition of the for the adverse party in the clerk's office. judgment or decree, the defendant, if it were within ten days, Sundays exclusive, after renfor money, was liable to be compelled to pay, dering the judgment or passing the decree. Such although he might ultimately be victor in the writs, as provided in the preceding section of litigation. In such case he would lie out of the that Act, may be brought within five years after use of his money in the meantime, and finally be the judgment is rendered or the decree is passed; compelled to take the chance of getting it back, and that section also provides that every justice perhaps by further litigation. The facts and or judge signing a citation on any writ of error, the law might be for him and yet the money be as aforesaid, shall take good and sufficient selost. If real estate were involved, he was liable curity that the plaintiff in error shall prosecute to be turned out of possession and to lose all his writ to effect, and answer all damages and benefit from the property during the same costs if he *fail to make his plea good. 1 [*429 period. It was frequently impossible to serve Stat. at L., 85. Under that provision this court the writ and give the bond within the ten days, decided that the security to be taken from the though both might readily have been done if plaintiff in error by the justice or judge signing more time were allowed.

the citation must be sufficient to secure the The 11th section of the Act of June 1, 1872, whole amount of the judgment. Catlett v. Bro17 Stat. at L., 196, was intended to remedy die, 9 Wheat., 553; Stafford v. Bk., 16 How., these evils. That section is as follows:

140. Where the writ of error is not a superse“That any party or person, desiring to have deas and does not stay execution the security reany judgment, decree or order, of any district quired and taken by the justice or judge signor circuit court reviewed on writ of error or ap- ing the citation shall be only to such an amount peal, and to stay proceedings thereon during as, in the opinion of the justice or judge taking the pendency of such writ of error or appeal, the same, shall be sufficient to ans all such may give the security required by law therefor, costs as, upon an affirmance of the judgment ar within sixty days after the rendition of such decree, may be adjudged or decreed to the rejudgment, decree or order, or afterward, with spondent. I Stat. at L., 404. But where the

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losing party desires to make the writ of error a thereof being lodged for the *adverse [*431 supersedeas, and to stay execution, he must sue party in the clerk's office

within ten out the writ and serve the same by lodging a days, Sundays exclusive,” from the date of the copy thereof for the adverse party in the clerk's judgment or decree. No provision of a differoffice within ten days, Sundays exclusive, after ent character upon that subject is enacted in the judgment is rendered or the decree is passed the new Act, nor does it contain a word repug. and give the security required by the prior sec-nant to the language or the requirements of the tion in a sum sufficient to secure the whole former provision. Execution is required to be amount of the judgment, except in certain spe- stayed by the former provision for the term of cial cases, as provided in the 29th Rule of this ten days, but the new law does not contain any court. Within that period it is the absolute regulation upon that subject. right of the party to adopt the necessary meas- None of these suggestions can be controverted, ures to stay execution pending the writ of error but the argument is that inasmuch as Congress or appeal, and in order that he may not be prej. has extended the time for giving the security to udiced in the enjoyment of that right, the same prosecute the appeal to sixty days, it follows section of the Judiciary Act provides that until that the writ of error may be served within that the expiration of ten days no execution shall is time and still have the effect of a supersedeas, sue in any case where a writ of error may be a although the only section of the Act of Consupersedeas, and also makes provision, in case gress which gives it that effect provides that it the judgment or decree is affirmed, that the shall have such an operation in cases only where court affirming it may adjudge just damages to the service is made by lodging a copy of it the respondent in the writ of error for his delay, the clerk's office for the adverse party within and single or double costs, at their discretion. ten days. Repeated decisions of this court have established Ten days from the date of the judgment or the rule that neither a writ of error nor an ap- decree is allowed by the former law to serve the peal is a supersedeas under the Judiciary Act writ of error, but the new Act allows to a party unless the required security be given within the desiring to stay proceedings sixty days to give 430*] ten days mentioned in the 23d * section of the required security, and it even goes further the Act. Stafford v. Bk., supra; Same Case, 17 and permits it to be given afterwards, with the How., 275, 15 L. ed. 101; Green v. Van Buskerk, permission of a justice or judge of the appellate 3 Wall., 448, 18 L, ed. 245; Silsby v. Foote, 20 court. How., 290, 15 L. ed. 822; Adams v. Law, 16 Questions not without difficulty, says Mr. How., 144; Hudgins v. Kemp, 18 How., 531, 15 Phillips, are suggested by a comparison of these L. ed. 511. Compliance with the conditions spe- two Acts, as the time within which the security cified in the 23d section of the Judiciary Act is to be given is alone acted on by the new Act. must be shown in order that the writ of error or Based on that suggestion the author inquires, appeal may operate as a superserleas and stay very pertinently, as it seems to me: does this execution; and the rule is also weil settled that alteration carry along with it a change of all if the writ of error be not sued out in time to the other provisions of the old Act as to the operate as a supersedeas this court cannot lodging of the writ of error in the clerk's office award a stay of execution. Saltmursh u Tut- within ten days, and the provision that no exhill, 12 How., 387; Wallen v. Willianes, 7ecution shall issue within the ten days? The Cranch, 278; Hogan v. Ross, 11 How., 294. En answer to the question, as given by the author, less the requirements of the Act of Congress are is directly opposed to the opinion just read, complied with, within the ten days allowed for which appears to proceed upon the ground that the purpose, no court can make a writ of error inasmuch as a change has been made in one of or appeal operate as a stay of execution under the conditions essential to a valid supersedeas the Judiciary Act. The Roanoke, 3 Blatchf., 390, it follows that the same change must be consid

Grant all that, when the question is tested by ered as made in all the other conditions, even the Judiciary Act, still it is insisted that the though the new Act contains no other language 23d section of the Judiciary Act is repealed by *to express any such intention, which, as (*432 the 11th section of the Act entitled “An Act to it seems to me, reverses the standard rule of Further the Administration of Justice," so as to construction as expressed in a valuable maxim substitute sixty days in the place of ten days as often quoted and applied in such discussionsprovided in the former Act. *17 Stat. at L., 198. | Expressio unius est exclusio alterius. If Con

By that Act it is provided that the plaintiff gress had intended to make other alterations in in error or appellant in such a case “may give the prior regulations upon the subject, it is fairthe security required by law therefor within ly to be presumed they would have said so, as it sixty days after the rendition of such judgment, is always to be presumed that the Legislature, decree, or order, or afterwards, with the per- when it entertains an intention will express it mission of a justice or judge of the said appel. in clear and explicit terms. Pott. Dwarris, 219. late court.” Undoubtedly the security required If the Legislature intended more, said Lord Denby the 22d section of the Judiciary Act to be man, in Haworth v. Ormerod, 6 Q. B., 307, we given to prosecute the appeal with effect may can only say, that, according to our opinion they be given within sixty days from the date of the have not expressed it; to which it may be added judgment or decree, but the Act to further the that the better rule of construction is to hold administration of justice contains no provision that the Legislature meant what they have acwhatever making writs of error or appeals a su- tually expressed, unless some manifest inconpersedeas, or giving them the effect to stay exe-gruity would result from doing so, or unless cution under any circumstances. They have the context clearly shows that such a constructhat operation and effect by virtue of the 230 tion would be erroneous. King v. Banbury, 1 section of the Judiciary Act “in cases only 'Ad. & E., 142. Words may sometimes be transwhere the writ of error is served by a copy posed, but they cannot be inserted. Lamond v.

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Eiffe, 3 Q. B., 910. Intention, it is true, should writ of certiorari is not a proper remedy for the
govern, but it must be such an intention as the alleged defect. Nothing is omitted from the
Legislature have used fit words to express. transcript which is a part of the record in the
Pott. Dwarris, 182; Brewer v. Blougher, 14 Pet., court below. On the contrary, the only com-
178. Repeals by implication are not favored. plaint is that the clerk has not appended to the
Wood v. U. 8., 16 Pēt., 342. On the contrary, transcript his certificate that it contains the
the leaning of the courts, says Mr. Justice full record. Such a defect, in a case of contu-
Swayne, is against the doctrine, if it be possible macy, might be remedied by a mandamus, but
to reconcile the two Acts of the Legislature to no application of that sort is made, nor is it
gether. McCool v. Smith, 1 Black, 470, 17 L. suggested that there are any grounds for such
ed. 222. Our best judgment is, says Mr. Phil. an application. Under the circumstances the
lips, that while the law has secured the right to motion for certiorari is denied, and leave is
stay proceedings by giving security in sixty granted to the plaintiff in error to withdraw the
days, the party is still bound to lodge his writ, transcript to enable him to apply to the clerk
as required by the Judiciary Act, within ten of the court below to append thereto the neces-
days, and that in the absence of a supersedeas sary certificate.
bond filed within that period the execution may
issue; and in that view I concur, and conse-
quently dissent from the direction and opinion

of the court. Service of the writ of error by
lodging a copy thereof in the clerk's office for

UNITED STATES. the adverse party within ten days, without

(See 8. C., 19 Wall., 17-20.) 433*] more, will not *effect a stay of execution, but if the security required is given within sixty Contracts for military suppliesimplied con

tract. days the supersedeas becomes effectual from the time the required security is given.

1. The Act of 1862, requiring contracts for millI am authorized to say that Mr. Justice tary supplies to be in writing, is not infringed by Davis concurs in this dissent.

the proper officer having charge of such matter, ac-
cepting delivery of such supplies after the day
stípulated, nor is a verbal agreement to extend the
time of performance, invalid.

2. When the quartermaster in charge receives

corn for the Government, and gives a receipt and ASA HODGES, Piff. in Err.,

vouches for the amount and the price, and the

Government uses such part of it as it wants and

suffers the remainder to decay by exposure and
neglect, there is an implied contract to pay the

value of such corn.
(See S. C., 19 Wall., 12, 13.)

(No. 165.] Certiorari to correct record-when not proper remedy-withdrawing transcript.

Argued Dec. 18, 1873. Decided Dec. 22, 1873. 1. A motion for certiorari is founded upon a sug. gestion of diminution and is designed to bring up The case is stated by the court. some part of the record left back and not included in the transcript.

Mr. T. J. D. Fuller, for appellant. 2. A certiorari is not a proper remedy, when the

Mr. C. H. Hill, Asst. Atty-Gen., for appellee. only complaint is that the clerk has not appended to the transcript his certiticate that it contains the full record. Such a defect in a case of contumacy,

Mr. Justice Miller delivered the opinion of might be remedied by a mandamus.

the court: case the motion for certiorariis The appellant entered into a written contract denied, and leave is granted to the plaintiff in error to withdraw the transcript, to enable him to

on the 28th of July, 1864, with the Quartermasapply to the clerk of the court' below to append ter's Department, to deliver at Fort Fillmore thereto the necessary certificate.

12,000 bushels of corn, at such times and in (No. 666.)

such quantities, of not less than 1,000 bushels

per month, as the assistant quartermaster Motion filed Dec. 19, 1873. Decided Dec. 22, 1879. should direct; 9,000 bushels before the 1st of

January, and the whole amount by the first day N ERROR to the Circuit Court of the United of May, 1865.

The 9,000 bushels were delivered and paid Motion for certiorari.

for before the first day of May, and about this The point in question sufficiently appears in there is no dispute. the opinion.

Some negotiations took place afterwards beMessrs. W. W. Wilshire and J. S. Robinson, tween appellant and the quartermaster of that for plaintiff in error,

military department, concerning the delivery of Mr. A. H. Garland, for defendant in error. the remainder, the finding in regard to which,

is not very clear. Mr. Justice Clifford delivered the opinion of The appellants did, however, deliver the rethe court:

mainder of the corn at Fort Fillmore, October Such a motion is founded upon a suggestion 15, 1865, by depositing it in the military storeof diminution, and is designed to bring up some house at that place. part of the record left back and not included The Chief Quartermaster's clerk afterwards in the transcript.

examined this corn, weighed some of the sacks, When first presented, and without explana-counted the remainder and gave the claimant tion, the court was inclined to grant the mo- a receipt for the amount, stating that it comtion, but upon further consideration, we are pleted his contract. The court finds that this all of the opinion that it must be denied, as the clerk then and there accepted and took actual

3. In such

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possession of the corn, and the Chief Quarter- | dan, promising to pay, Dec. 25, 1867, an amount master gave the claimant the usual voucher for the sum due.

The court also finds that the corn was sound when delivered, but was injured by reason of the defective and leaky condition of the storehouse at Fillmore.

Whether we regard this last delivery, made in October, as made under a verbal extension of the time stipulated in the original contract, or consider it as a new transaction in which the government received and took possession of the corn, and used part of it and permitted the remainder to be injured in its hands, we think the claimant is equally entitled to pay for it. That Act of 1862, 1 Stat. at L., 411, requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting deliv20*] ery of such supplies *after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.

And if this were not so, when the quartermaster in charge receives of a person, corn for the Government, gives a receipt and voucher for the amount and the price, and the Government uses such part of it as it wants, and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn, which value may, in the absence of other testimony, be presumed to be the price fixed in the voucher by the quartermaster. The judgment of the Court of Claims is, therefore, reversed, with directions to enter a judgment for claimant for the amount of the said voucher.

271*] *H. R. HALL et al., Plffs. in Err.,



(See S. C., 19 Wall., 271-273.) Stamps required on deed-when ten per cent. damages will be given on affirmance. Under the Stamp Act, the amount of stamps to be put upon a deed is according to the amount of dollars of its consideration, whether the consideration is to be paid in gold or in currency, although a gold dollar is worth more than one in currency. Where a writ of error is prosecuted for delay, ten per cent. damages in addition to interest will be given on affirmance.

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This action was brought by Jordan, the defendant in error, in the Court of Chancery for Lauderdale Co., Tennessee, to enforce an alleged vendor's lien upon certain land sold by Jordan to the defendants, now plaintiffs in error. consideration stated in the deed was $13,000, and stamps to the amount of $13 were affixed thereto. In the state courts, the defendants there alleged that they had no title to the land, because the deed purporting to convey it was not stamped according to the provisions of the Acts of Congress. It appears that, at the time of the purchase, i. e., Nov. 1, 1866, or soon after, the vendees paid to the vendor the sum of $6,500 in gold, and executed their note to Jor

in the legal currency of the United States sufficient to purchase at that time $6,890 in the gold coin of the United States. Judgment was rendered in the Chancery Court for Jordan. The Supreme Court of the State also rendered udgment for him. Neither of the state courts directly passed upon the defense that the deed was not properly stamped, and that defense is not mentioned in the decrees. At the last term motion was made by the defendants in error in this court to dismiss the writ of error. motion was denied. 15 Wall. 393, 21 L. ed. 72. Mr. Reverdy Johnson, for plaintiff in error: The contract was for an amount in currency which would buy the nominal amount agreed to be paid in gold. As the value of the currency was much less than the value of gold, the true consideration for the deed exceeded $13,000; and consequently the stamps on the deed were less than the law required.


Mr. Fred. P. Stanton, for defendant in error: There has never been any law requiring the stamps on deeds to be regulated by the currency values, where the transactions were for gold coin. The 9th section of the Act of July 13, 1866, 14 Stat. at L., 147, applies only to returns of income and taxable products, which were to be made to the assessors and reduced to currency values. That no such requirement was made as to stamp taxes, see 13 Stat. at L., p. 291, in schedule B, p. 299.

This writ of error was sued out for delay and comes within the 23d Rule. The stamp affixed to the deed was exactly what the law required. If the plaintiffs in error honestly doubted this, they had it in their power to correct the supposed error by applying to the collector. By the practice in Tennessee a vendee must furnish deeds and stamps. The plaintiffs in error are, therefore, endeavoring to take advantage of their own wrong.

No opinion was read; the following was the order entered.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Tennessee, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of ten per cent. in addition to interest from the date of the decree below, until paid, at the same rate per annum that similar decrees bear in the courts of Tennessee.-Per Mr. Justice Clifford.

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(See S. C., 19 Wall., 65-70.) Trial by the court-questions open for review.

1. Where a jury is waived and issues of fact are submitted to the circuit court and the finding is general and there is no statement of facts, nothing is open to review by the losing party under a writ of error, except the rulings of the circuit court in the progress of the trial.

2. In such case there can be no review of the

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