
    FITZGERALD et al. v. BASSFORD.
    (Circuit Court of Appeals, Third Circuit.
    January 8, 1906.)
    No. 250.
    Writ of Ereor — Review—Case Tried by Court.
    Where an action at law was tried by the Circuit Court without a jury by stipulation made pursuant to Rev. St. § 649 [U. S. Comp. St. 1901, p. 525], and it does not appear that there was any special finding of facts, an assignment of error that the court “erred in rendering judgment in favor of the plaintiff, and against the defendant” presents no question which can De reviewed by the Circuit Court of Appeals.
    In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.
    For opinion below, see 138 Fed. 958.
    F. F. Brightly, for plaintiffs in error.
    Gilbert F. Schamberg, for defendant in error.
    Before ACHESON, DADLAS, and GRAY, Circuit Judges.
   DALLAS, Circuit Judge.

We abstain from expressing any opinion upon the merits of the controversy in this case, because we have no authority to review the decision of them which was made by the court below. The action was tried without the intervention of a jury, under the act of Congress of March 3, I860 (Rev. St. § 649 [U. S. Comp. St 1901, p. 525]), and the only specification of error relied upon, is, that the court “erred in entering judgment in favor of the plaintiff and against the defendant.” This specification does, not aver that the judgment to which it relates was founded upon any special finding of fact, and we cannot assume that any such finding was either requested or made, for there is nothing in the record which would justify us in doing so. All that appears is “a general verdict, which includes or may include, as it generally does, mixed questions of law and fact”; and that “in such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury,” is too well settled to be open to question. Norris v. Jackson, 9 Wall. 125, 19 L Ed. 608; Kearney v. Case, 12 Wall. 275, 20 L. Ed. 395; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457.

There is, therefore, no error of which we can take cognizance, and the judgment of the Circuit Court is affirmed.  