delivered the opinion of the court.
The plaintiff and appellee has prayed for the dismissal of the appeal, on the ground- that there is neither a statement of the facts, nor any document legally supplying one, no bill of exceptions, or assignment of errors, &c. The defendant and appellant has urged, that the testimony was taken down in open court during the trial, which is declared by law to serve as a statement of facts when none is made.
The appellant has urged that the testimony was taken down on the application of an amicus curias, who did not pretend, and it is not urged, had any authority to represent the defendant, or to move any thing in his behalf; that his, *129the plaintiff’s and appellee’s counsel, objected at the time to the testimony being so taken down, unless at the request of the defendant; but his objection was overruled, the judge being of opinion the court might, ex officio, direct and order the testimony to be taken.
The request of one of the parties, by ths disagree as to a statement of ^¿0ny not bjr™infftalJ™ tl‘" the parties, the jndge is bound to of facts, and he has no right to a™id the °bi>gation which the >aw ,im?.05es..on ttbetc¡j¡ anting dby“ tie clcrk'The Code of Practice, 601, provides, that either party “may require the clerk to take down the testimony in writing, which shall serve as a statement of facts, if the parlies do not agree to one.”
The testimony thus taken in writing, can serve as a statement of facts, when the parties do not agree to one in the whole case, when the clerk has been required by either party. In the present case an absolute stranger, unconnected with and unauthorised by either party, made the requisition on the J * J * clerk, the only party who was in court, objecting; thereto The testimony was therefore taken in writing without the request of one of the parties which alone could authorise it.
The parties have the right, if the testimony be not taken alone in writing, at the request of either of them, and they do not agree on a statement of facts, to call upon the judge to make one. He is bound to do so at the request of either 1 party, and we are unacquainted with any right in him to avoid the obligation the law imposes on him, by directing. ex officio, the testimony to be taken down in writing by the 1 -> ClerK.
The law contemplates three modes of bringing up the facts of a case before us, when they do not appear in written J documents. A statement agreed on by the parties or their counsel; in the absence of this, a statement made by the judge, or a copy of the testimony taken down in open court by the clerk, at the request of either party; and it appears to us, the judge cannot restrain this right, by directing the testimony to be taken down by the clerk.
As the appellant has not brought to this court, a record which enables us to reverse the judgment appealed from, the appeal must be dismissed at his costs.