Page:Federal Reporter, 1st Series, Volume 8.djvu/388

^74 FSDEIUIi B£FOBT£B. �of proceeding as is embraced in section 914 of the Revised Statutes, which adopts for the circuit and district courts of the United States, in Buits at law, the practice of the state courts. There is nothing in section 914 which extends or affects the power of this court, as it before existed, on a writ, of error to the district court. Wear v. Mayer, ut supra. �The above views do not interfere with the right to have a trial by a referee, in a suit at law, by consent, in the district court, or with the power of the circuit court, on a writ of error, to revise the pro- ceedings on the trial before the referee on proper papers. This was done by this court in Sicard v. The Buffalo, etc., R. Co. 15 Blatchf. 525, and in Tyler v. Angevine, Id. 536. This practice is founded on the view, held by the supreme court, that the referring of actions under a rule of court, by consent of parties, was well known at com- mon law, and as well established and as fully warranted by law as actual trial by jury, (Alexandria Canal Co. v. Swan, 5 How. 89 ; York, etc., R. Co. V. Myers, 18 How. 246; Heckers v. Foivler, 2 AVall. 123; Rollnson v. Mut. Benefit Life Ins. Co. 16 Blatchf. 194, 201 ;) where- as, the finding of issues of fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. Campbell v. Bnyreau, ut supra. The record shows that before the answer was put in a demurrer to the complaint was interposed by the defendant, and that there was a joinder in demur- rer filed by the plaintiff, and that the issue of law thus joined was heard by the court, and the demurrer was overruled, with costs, and the defendant was allowed to answer. The questions arising on the demurrer are open to review on this writ of error. The demurrer assigns, as causes of demurrer, the following : �(1) That the complaint does not show that there was any process, writ, oi summons of any court whereon to found it, or that any writ, process, or sum- mons has been filed in any court, or served on the defendants. (2) ihat it appears on the face of the complaint that each coupon did not become due and payable senii-annually after May 7, 1872, the date of the creation and issuing of the bonds to which the coupons were annexed, as required by chapter 907 of the laws of isfew York of 1869, and the ameiidments thereto, under which the bonds appear on their face to have been issued, but that said coupons were made to become due and payable on the first days of April and October, in each year, which are days not semi-annually froin and after the date and issuing of said bonds, and that, therefore, said bonds are void. (3) That it appears on the face of the complaint that the plaintiff has no legal ciipacity to maintain the suit, because it is not authorized to become the purchaser or transferee of the coupons sued on, by the act of June 3, 1864, under which, as stated in the complaint, it waa organized; and that it do3s not appear froin ��� �