
    Lee vs. Porter, surviving partner.
    [Wabnee, Chief Justice, being engaged in presiding over the senate organized asa court of impeachment, did not sit in this case.]
    1. Where, by consent of parties a cause involving both law and fact is tried by the judge without a jury, and the judgment is excepted to generally, with no specification as to whether the error intended to be alleged was a mistaken finding on the facts, or an erroneous ruling upon some point of law, a copy of the documentary evidence as well as a brief of the oral evidence must be brought up. It is not enough that the bill of exceptions represents that certain writings, such as exemplifications from other courts, showed so and so, not reciting the contents but only stating the supposed legal effect.
    Bill of exceptions. Evidence. Practice in the Supreme Court. September Term, 1879.
    Reported in the decision.
    Emmett Womack, for plaintiff in error.
    Clark & Pace ; H. K. McCay, for defendant.
   Bleckley, Justice.

In the court below, this was a rule for the distribution of money. The parties to the present writ of error were competing creditors, each claiming a judgment lien upon the fund. The issue as to both law and fact was, by consent, tried by the court without a jury, and the judgment is excepted to generally, with no specification as to whether the error intended to be alleged was a mistaken finding upon the facts, or an erroneous ruling on some point of law. A material part of the evidence was documentary, such as exemplifications from the records of other courts, and no copy of the documents is brought up, nor does any recital of their contents appear. The bill of exceptions merely represents that this and that writing showed so and so, stating the supposed legal effect, but not in a way to enable this court to determine for itself what conclusions ought to have been drawn from them. At the call of the case here, the defendant in error moved to dismiss the writ of error for this deficiency in the record. The assignment of error being general, we cannot review the judgment without going into the facts, just as the court below did. For this purpose we ought to have the evidence, and not merely the inferences which the counsel for the plaintiff in error, with the judge’s sanction, drew from it in preparing the bill of exceptions. It may be that we would draw very different inferences, and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.

“ The pupil of impulse, it forc’d him along,

His conduct still right, with his argument wrong;

Still aiming' at honor, yet fearing to roam, •

The coachman was tipsy, the chariot drove home.”

Writ dismissed.  