delivered the opinion of the court. This ease is presented to us on errors of law, apparent on the face of the record.
*636That relied on in the argument, relates to the cause being iried hv the court, when the pleadings show a jury, was prayed for.
This would be error, unless the party complaining was present by himself or attorney, and consented to try the case by the court; if he was, he cannot be permitted to take his chance of success in that way, and then turn round on his adversary and say that the trial was irregular.
It appears from the proceedings that the defendant or his attorney assisted at the investigation of the case in the court below. Evidence was adduced on both sides, and two several admissions are stated to have been made of the plaintiff’s title. These latter could not have taken place unless by the defendant or Isis attorney.
The error» in relation to the merits cannot be gone into, for the record does not come up in such a way as to enable us to examine them. The presumption arising from the clerk’s taking down the testimony, can only extend to the parol evidence. Nothing informs psdbat all the written documents read on the trial appear on the record.
Watts & Lobdell for the plaintiff, Hennen for the defendant. ,it is therefore ordered, adjudged and decreed, that the appeal be dismissed with costs.