
    Clohecy, Respondent, vs. Ragan, Appellant.
    1. It has been repeatedly held that the practice act of 1849, (except the 25th article,) does not apply to the trial in the appellate court of a cause appealed from a justice of the peace; hut the old practice must still he observed. No finding of facts is necessary. Declarations of law must he asked, and the material evidence preserved in a hill of exceptions; otherwise, the case will not he reviewed in the supreme court.
    
      Appeal from, Franklin Circuit Court.
    
    Action commenced before a justice of the peace for the board of hands employed on section nine of the Pacific railroad, tried in the Circuit Court on appeal without a jury. There is a bill o£ exceptions in the record, which contains a finding of the facts by the court, and a motion for a review setting out the evidence. The finding states that the hands were employed by one Clifford, who was ostensibly a sub-contractor under the defendant, the original contractor; but that in reality Clifford was only defendant’s agent or secret partner, and so the latter was liable in this action. No declarations of law were asked and none given. The defendant appealed from the judgment against him.
    
      J. D. Stevenson, for appellant.
    1. The facts found were not warranted by the evidence. 2. The facts found do not warrant the judgment. The hands alone were liable for their board, and no one else.
    
      C. Jones, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a suit begun before a justice of the peace, and taken by appeal to the Circuit Court, where it was tried by the court sitting as a jury, proceeding in conformity to the provisions of the present practice act.

It has been repeatedly held by this court that, except so far as it relates to the matter of evidence, the present practice act does not affect justices’ courts. Indeed, this is the express enactment of the statute itself. It follows, therefore, that in the trial of appeals from justices’ courts, the circuit courts must conform to the mode of procedure in use prior to the passage of the present practice act. When the court tries the cause as a jury, instructions must be asked, as formerly, as declarations of the law of the case. No finding of the facts is necessary. Upon an appeal to this court, the evidence deemed material and the instructions given and refused must be preserved in a bill of exceptions. This case, then, stands as one under the old practice, in which a trial has been had by the court and no instructions asked. Under such circumstances, the cause cannot be reviewed in this court. The judgment, therefore, will be affirmed, with the concurrence of the other judges;  