(concurring). Prior to the act of Congress of March 3, 1865, now embodied in the sections of the Revised Statutes cited in the opinion of the court, the submission of issues of fact, in an action at law, to the court instead of to a jury for trial precluded a review- by writ of error of alleged errors occurring in the course of such trial. The reasons therefor were clearly stated by Mr. Justice Miller in the case of Kearney v. Case, 12 Wall. 275, 20 L. Ed. 395. To provide for such a review, the act of March 3, 1865, authorized the parties to make in writing, and file with the clerk of the court, a stipulation waiving a jury, compliance with which prescribed steps, the Supreme Court held in the case cited, enables the defeated party to have errors alleged to have been committed on such a trial reviewed by writ of error; but, in the absence of those steps, it was there distinctly adjudged that no such review can be had, and that in such cases the judgment must be affirmed; the court having jurisdiction of the parties and the subject-matter.
I also concur in the holding that the pleadings in the present case are not insufficient to support the judgment.