Page:Federal Reporter, 1st Series, Volume 6.djvu/671

WEAB «.'MAYERi <6M �thereoii, and eiceptions to the same. Ceunsel for the assignee moves to dismiss the writ of error, for the reason that this cottirt has no'jurisdiotion of the case. In support of this mo- tion it is insisted that the plaintiff in error should have given notice as required by section 4981 of the Revised Statutes of the United States. That section provides as follows: "No appeal shall be allowed in any case from the district to the circuit court unless it is claimed and notice given thereof to the clerk of the district court, to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 days after the entry of the decree or decision appealed from, nor unless the appellant, at the time of claiming the same, shall give bond in the manner required in cases of appeals in Buits in equity ; nor shall any writ of error be allowed unless the party claiming it shall comply with the provisions of law regulating the granting of sueh writs." In the case of Ins. Co. V. Comstoak, 16 Wall. 266-7, the supreme court construes this section as follows : "Taken literally, the 10 days* limita- tion does net extend to writs of error, but the better opinion is, in view of the fact that writs of error and appeals are asso- ciated together in the arst clause of the section, that the word < appeal,' atthe comniencement of the second clause, means the same as 'review' or 'revision,' and that it was intended to inclnde the writ ai error as well as appeal, as the whole section seems to contemplate a more expeditions disposition of the cause in the appellate court than that described in the judiciary act, or the act to amend the judiciary System." FoUowii^ this clear intimation of the supreme court, I should, even if there was no other question of jurisdiction presented by this record, feel constrained to sustain the motion to dis- miss. But that motion is tirged upon another ground, which I proceed to consider. It is insisted that the cause having been tried before the judge of the district court, sitting in place of a jury, by consent of both t)arties, the judgment cannot be reviewed in the circuit court upon a writ of error. The finding of an issue of fact by the coiirt upon the evidence, either with or without the consent of parties, was a proceed- ��� �