Horace Gray

“ In the finding of facts and in the judgment there is no statement upon the subject. The only evidence of a waiver of a jury is in the statement in the record that when the case came on for trial 'the issue joined by consent is tried by the court, a jury being waived;' and in the recital at the beginning of the bill of exceptions, 'the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury.' The case cannot be distinguished, in any particular favorable to the plaintiffs in error, from those of Madison Co. ”

“ By the common law, indeed, a general verdict and judgment upon several counts in a civil action must be reversed on writ of error, if only one of the counts was bad. But Lord MANSFIELD 'exceedingly lamented that ever so inconvenient and ill-founded a rule should have been established,' and added, 'what makes this rule appear more absurd is that it does not hold in the case of criminal prosecutions.' Grant v. ”

“ Boyreau, was that, 'by the established and familiar rules and principles which govern common-law proceedings, no question of law can be reviewed and reexamined in an appellate court upon writ of error, (except only where it arises upon the process, pleadings, or judgment in the cause,) unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts and referring the questions of law to the court.' 21 How. ”