*673 error for any error of fact." The provisions of the act of 1865 are reproduced in sections 649 and 700 of the Revised Statutes, as follows: Sec. 649. "Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." Sec. 700. "When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the supreme court upon writ of error or upon appeal, and, when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment." The provision of section 1011, Revised Statutes, continues in force and forbids a reversal of the judgment of the circuit court for any error of fact. Upon the issues of fact raised by the pleadings in this case there was a general finding for the plaintiff. The defendant contends that the evidence submitted to the court did not justify this general finding. But, if the finding depends upon the weighing of conflicting evidence, it was a decision on the facts, the revision of which is forbidden to this court by section 1011. If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented that question, by a request for a definite ruling upon that point. Sections 649 and 700 were first fully construed by this court in Norris v. Jackson, 9 Wall. 125. The court, in that case*speaking by Mr. Justice MILLER, laid down the following propositions: "(1) If the verdict be a general verdict, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions, or are presented by the pleadings; (2) in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a jury trial; (3) if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict which raises the legal propositions, or they must present to the court their propositions of law and require the court to rule on them; (4) objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.' These propositions have been persistingly adhered to by this court. Thus, in Miller v. Life Ins. Co. 12 Wall. 298, it was said: "The finding of the court, if general, cannot be reviewed in this court by bill of exceptions or in any other manner.' "" * * In Insurance Co. v. Folsom, 18 Wall. 237, the court said: “When the find ing is general the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. When a case is tried by the court without a jury a bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial." So in Cooper v. Omohundro, 19 Wall. 65, this court, affirming the case last cited, held that "when issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review * except the rulings of the court in the progress of the trial, and the phrase 'rulings of the court in the progress of the trial' does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general finding." See, also, Town of Ohio v. Marcy, 18 Wall. 552; Insurance Co. v. Sea, 21 Wall. 158; Jennisons v. Leonard, Id. 302; Tyng v. Grinnell, 92 U. S. 467; The Abbottsford, 98 U. S. 440; Otoe Co. v. Baldwin, 111 U. S. 1; S. C. 4 SUP. CT. REP. 265. * * * " The proposition that the general finding of the court in this case is open to review is in direct opposition to the rulings of the court in the cases cited The plaintiff in error seeks to make the question whether the evidence set out in the bill of exceptions justified the finding by the court for the plaintiff of the issue of fact raised by the pleadings. This is, in defiance of the decision of this court that it cannot be done, an attempt upon a general finding to bring up the whole testimony for review by a bill of exceptions. The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that, by excepting to the general finding, he excepts to such conclusions of law as the general finding implies; but section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. Norris v. Jackson, ubi supra. But the plaintiff in error has taken no such exception. By excepting to the general finding of the court, it is in the same position as if it had submitted its case to the jury, and, without any exceptions taken during the course of the trial, had, upon a return of the general verdict for the plaintiff, embodied in a bill of exceptions all the evidence, and then excepted to the verdict because the evidence did not support it. The provision of the statute, that the finding of the court shall have the same effect as the verdict of a jury, cuts off the right of review in this case; for the seventh amendment to the constitution of the United States declares that "no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The only methods known to the common law for the re-examination of the facts found by a jury are either by a new trial granted by the court in which the issue had been tried, or by the award of a venire facias de noco by the appellate court for some error of law. Insurance Co. v. Folsom, ubi supra. The court below having made a general finding, which by the statute has the same effect as the verdict of a jury, the plaintiff in error can resort to no other means of redress than those open to it had the case been tried by a jury and a general verdict rendered. But the very question now under discussion was decided by this court adversely to the views of the plaintiff in error in the case of Coddington v. Richardson, 10 Wall. 516. In that case a jury was waived under the act of March 3, 1865, by stipulation in writing, "and all just and legal objections and exceptions which might be made were reserved by each party." The court found the issue for the plaintiff, and assessed his damages at $5,000. The defendant moved for a new trial, but his motion was overruled by the court, and judgment was entered on the finding against the defendant. He took a bill of exceptions, which set out all the evidence and showed that he excepted to the rulings of the court in finding the issue for the plaintiff, in assessing the plaintiff's damages, in overruling the motion for a new trial, and in rendering judgment. No exceptions were taken during the course of the trial. Upon this state of the record this court said: "There is no question of law upon the pleadings or the trial. Those attempted to be raised refer to the evidence as embodied in the record, but which, on a trial of the facts before the court, a jury being waived, we do not look into. We look into them only when found by the court." The statute under consideration could have no other reasonable construction. Prior to the enactment of the act of March 3, 1865, it was held by this court that "where the case is submitted to the judge to find the facts without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment on the law," (Weems v. George, 13 How. 190;) and that "no exception can be taken where there is no jury, and where the question of law is decided in delivering the final judgment of the court." U. S. v. King, 7 How. 853. See, also, Craig v. State, 4 Pet. *676 689. 427. The fourth section of the act of March 3, 1865, was passed to allow the parties, where, a jury being waived, the cause was tried by the court, a review of such rulings of the court in the progress of the trial as were excepted to at the time, and duly presented by bill of exceptions, and also a review of the judgment of the court upon the question whether the facts specially found by the court were sufficient to support its judgment. In other respects the old law remained unchanged. In the present case the bill of exceptions presents no ruling of the court made in the progress of the trial, and there is no special finding of facts. The general finding is conclusive of the issues of fact against the plaintiff in error, and there is no question of law presented by the record of which the court can take cognizance. It follows that the judgment of the circuit court must be affirmed, and it is so ordered. (112 U. S. 676) TOWN OF SHELDON v. DAY. SAME V. FAIRBANKS. (January 5, 1885.) These cases, both in error to the circuit court of the United States for the North. ern district of Illinois, are, in all respects, similar to the case just decided, (Town of Martinton v. Fairbanks, ante, 321.) The judgments in these cases must therefore be affirmed; and it is so ordered. (112 U. S. 688) MURPHY, Adm'x, etc., v. VICTOR SEWING-MACHINE Co.1 PRINCIPAL AND SURETY-ACTION ON BOND-NOTICE Of Default. A bond by a principal and a surety was conditioned that the principal should pay to V. all indebtedness existing or to exist from the principal to V. under existing or future contracts between him and V., and waived notice of non-payment on all notes executed, indorsed, or guarantied by the principal to V. In a suit on the bond against the obligors, to recover the amount of notes executed by the principal to V., and other notes indorsed and guarantied by him to V., held, that it was not necessary to allege or show any notice to the surety of a default by the principal in paying V. Appeal from the Supreme Court of the Territory of Utah. John R. McBride and J. G. Sutherland, for appellant. Chas. W. Bennett, for appellee. BLATCHFORD, J. This suit was brought in the district court of the Third judicial district of the territory of Utah, on the first of October, 1879, by the Victor Sewing-Machine Company, against two persons named Crockwell and Bassett and one named Murphy. On the eleventh of March, 1876, the company, of one part, and Crockwell & Bassett, copartners by that name, of the other, entered into a written agreement, whereby (1) the former appointed the latter exclusive agents for the sale of the Victor sewing-machine for certain counties in Utah territory; (2) the former to deliver the machines, free of charge, at Chicago; (3) the former to sell the machines to the latter at 50 per cent. discount from retail list of prices, and parts and attachments at regular agents' prices; (4) settlement to be made by note at 12 months from first of month following date of invoice, payable to the former, or its order, at bank in Salt Lake City, with 6 per cent. interest, or, in lieu, the latter may indorse and assign to the former promissory notes, drawing interest, given to the latter, not payable longer than 12 months from the time they are received by the former. On the same day the three defendants executed a joint and several bond, under seal, to the plaintiff, in the penalty of $2,000, with a condition, of which all that is material to this case was as follows: "The 1 See 1 Pac. Rep. 470. condition of this obligation is such, that if the above-bounden Crockwell & Bassett shall well and truly pay, or cause to be paid, unto the said Victor Sewing-Machine Company, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of the said Crockwell & Bassett to the said Victor Sewing-Machine Company, whether such indebtedness or liability shall exist in the shape of book-accounts, notes, guarantied leases, renewals or extensions of notes, accounts, or guarantied leases, acceptances, indorsements, or otherwise, or whether such liability shall arise from the consignment of machines or other property to the said Crockwell & Bassett by the said Victor Sewing-Machine Company, under any existing contract, or any contract which shall be hereafter entered into in writing by and between the said Crock well & Bassett and the said Victor Sewing-Machine Company, hereby waiving presentment for payment, notice of non-payment, protest, or notice of protest, and diligence, upon all notes or leases now or hereafter executed, indorsed, transferred, guarantied, or assigned by the said Crockwell & Bassett to the Victor Sewing-Machine Company, then this obligation to be void; but otherwise to be in full force and effect." This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hæc verba the agreement and the bond, and avers that between the eleventh of March, 1876, and the first of January, 1877, the plaintiff, in pursuance of the agreement and at the request of Crock well & Bassett, sold and delivered to them Victor sewing-machines, of the value of more than $5,000; that the defendants have broken the conditions of the bond, in that Crockwell & Bassett, in part payment for such machines, made and delivered to the plaintiff their four promissory notes,-one for $423.50, dated April 1, 1876, at 12 months, with interest; one for $1,216.75, dated May 2, 1876, at 12 months, with interest; one for $49.50, dated September 9, 1876, at 9 months, with interest; and one for $369.47, dated September 1, 1876, at 12 months, with interest, all providing for 10 per cent. interest per annum after due until paid, and 10 per cent. attorney's fees, if collected by an attorney; that Crockwell & Bassett, between the dates first named, resold to purchasers some of the machines, and took the notes of the purchasers therefor, and, in part payment to the plaintiff, indorsed and guarantied the payment of said notes, and delivered them to the plaintiff, their principal amounting to $1,012; that Exhibit B to the complaint contains a statement of the date of each note, the date when due, the name of the maker, and the amount; and that there is due to the plaintiff on all of said notes over $4,200, for principal, interest, and attorney's fees, less a credit of $1,226.31. Murphy answered, denying specifically the breaches alleged, setting up payment of the notes by Crockwell & Bassett, and averring that the contract and bond were procured by fraud and misrepresentations on the part of the plaintiff, made to Crock well & Bassett, and on which they relied, which the plaintiff knew to be untrue, and which are set forth; and that the defendants were induced to execute the bond by false and fraudulent representations of the plaintiff, in this, that the plaintiff represented to the defendants that it was well acquainted with the business of Crock well & Bassett; that they were in good credit, and were good business men, and had promptly met their obligations, and would make money out of the proposed contract with the plaintiff, whereas the plaintiff knew that they were then in failing circumstances, and were not able to pay their debts, and were not good business men, and were at that time indebted to the plaintiff, and had not met their obligations, and that they would lose money on the proposed contract with the plaintiff; and that the defendants signed the bond solely on the faith and credit which they gave to those representations. Crockwell & Bassett also answered. The cause was referred to a referee to "hear, determine, and report a judgment." He reported findings of fact and conclusions of law. He found the 069. *691 692 facts to be as alleged in the complaint, and that there was due, at the com mencement of the suit, from Crockwell & Bassett, to the plaintiff, in respect of the matters set forth in the complaint, over $2,000, exclusive of offsets and attorney's fees; and that the execution, neither of the agreement nor of the bond, was procured by any false or fraudulent representations made to Crockwell & Bassett, or either of them, by the plaintiff. The report then proceeded: "I find the defendant Edmund H. Murphy did not execute said bond on or relying upon the representations set forth in the last defense of the answer of the sureties, and that the material part of said alleged representations was not made; that he inquired of George Wilkinson, plaintiff's agent in negotiating said agreement and bond, the object thereof and the condition of the business, and said Wilkinson informed said Murphy that the plaintiff proposed to give Crockwell & Bassett a new contract, and larger commissions, and an opportunity to make more money; that, so far as they had acted, it was to the satisfaction of the plaintiff. I find that the business of Crock well & Bassett did then appear to be in a good condition, and they had thus far acted to the satisfaction of the plaintiff; that said Wilkinson made no settlement of the business with Crockwell & Bassett, but they had then given and turned over guarantied notes to the plaintiff to the full amount of their indebtedness; that said notes were not due, and their indebtedness to the plaintiff on cash account very small; that they held in their hands notes and leases taken on sales of machines, far in excess of their liabilities, and, had said notes and leases, and the notes guarantied and delivered to plaintiff, been good and collectible, the contrary of which was not then known to the plaintiff or its agent, the business of Crockwell & Bassett would have been in good condition; that the said George Wilkinson, in November, 1876, had no authority from the plaintiff except to take the business out of the hands of Crockwell & Bassett and turn it over to another party. He did not have in his possession said agreement or bond, or the notes mentioned in the complaint, or exercise or claim to exercise any authority, real or apparent, in regard thereto." The referee found the following conclusions of law:*“(1) That there was due from the defendants Crockwell & Bassett to the plaintiff, at the time of the commencement of the action, on account of the matters stated in the complaint, more than the sum of two thousand dollars, the non-payment of which constituted breaches of the said bond. (2) That the execution of said bond was not procured by fraud, and the plaintiff is not barred or estopped from enforcing the same, nor are the sureties thereon, or any of them, discharged by reason of any matters occurring subsequent to the execution of the bond. (3) The plaintiff is entitled to judgment against all the defendants, for the sum of two thousand dollars, and interest at ten per cent. per annum, from the commencement of the action, to-wit, the first day of October, 1879, and costs of suit, to be taxed." Murphy filed exceptions to the findings of fact and the conclusions of law. Judgment was entered for $2,550, and costs. Murphy appealed to the supreme court of the territory, which affirmed the judgment, and, he having afterwards died, his administratrix appealed to this court. It is alleged as error that the complaint is insufficient in not alleging notice to Murphy of the default of Crockwell & Bassett; and that no notice is shown. There is no force in this objection. The condition of the bond is absolute that Crockwell & Bassett shall pay all indebtedness, the obligors waiving notice of non-payment on all notes executed, indorsed, or guarantied. As Murphy did not make or indorse the notes, his waiver could only apply to a default by Crockwell & Bassett. As to the defenses of fraud and misrepresentation set up in the answer, they are negatived by the findings. The judgment is affirmed. See Streeper v. Victor S. M. Co., post, 327. |