
    Melvin vs. Leaycraft.
    On the refusal of a court of common pleas to set aside a report of referees for alleged errors of the referees, if the losing party desires to review such decisions, he must procure a statement of facts not the evidence of the facts, to be drawn up under the direction of the common pleas, and placed upon the record in the form of a special or supplementary report of the referees, in the nature of a special verdict or bill of exceptions 
      
    
    
      
      
         Church v. Rhodes, 6 How. Pr. R. 281; Simmons v. Johnson, id. 489 ; Code § 272, 268; Rule 15 (of Sup. Court, 1854); Watson v. Scriven, 7 How. Pr. R. 10; Esterly v. Cole, 3 Corns. 502; Lockwood v. Thorn, 1 Kern. 170.
      In order to confine the review by the appellate court to questions of law, and exclude the discussion of questions of fact, the courts have, by a long series of decisions and rules, refused to look beyond the judgment record (or roll), and excluded from it all histories of the trial, except bills of exceptions and special verdicts, presenting only questions of law. Livingston v. Radeliff, 3 How. Pr. R. 417; id. 418, 419, 420. Where a case made docs present questions of law, it may be turned into a bill of exceptions or special verdict for the purpose of review. These rulés are clear and definite in eases tried before a jury, but when tried before a referee or a judge without a jury, it was not only more difficult to draw the distinguishing lines between decisions of law and fact, but it was also thought that more latitude of review, could be permitted on the fact. This idea is favored by § 348 of the Code, as amended in 1852. But the court of appeals adhere to the rule in those instances, as well as in cases determined by verdict, and say that a case in the nature of a bill of exceptions must he settled in the supreme court, and inserted in the roll, stating facts (not the mere evidence of facts), and questions of law. Livingston v. Radcliff, 2 Comstock, 189 ; Code, § 272, 268; Price v. Powell, 3 Corns. 332; Allen v. Way, 3 Code Rep. 243; Borst v. Spelman, 4 Corns. 284; Easterly v. Cole, 3 Comstock, 502 ; Davis v. Allen, id. 168 ; Zabriskie v. Smith, 1 Hernán, 480 ; Morris v. Husson, 4 Selden, 204. See Lake v. Gibson, 2 Corns. 188 ; 7 How. Pr. R. 10 ; id. 274; Mills v. Thursby, 11 id. 134.
    
   This was a' writ of error to the common pleas of New York, to reverse a judgment rendered upon a report of referees. Application was made to that court, upon affidavits, to set aside the report for alleged errors of the referees. The report was confirmed, and judgment rendered accordingly. The defendant sued out a writ of error, and in the record brought into this court were incorporated the affidavits produced upon the motion to set aside the report. On this being discovered, when the cause came on to argument, The Court handed back the error books, saying that the plaintiff in error instead of presenting his case in the form in which it appeared, should have obtained a statement of the facts (not the evidence of the facts), upon which the decision of the common pleas was founded, to be drawn up under the direction of that court and placed upon the record in the form of a special or supplementary report of the referees, in the nature of a special verdict or bill of exceptions, according to the suggestions of Chancellor Walworth, in the case of Feeler v. Heath (11 Wendell, 447).  