This was a suit begun before a justice of the peace, and taken by appeal to the Circuit Court, where it was tried by the court sitting as a jury, proceeding in conformity to the provisions of the present practice act.
It has been repeatedly held by this court that, except so far as it relates to the matter of evidence, the present practice act does not affect justices' courts. Indeed, this is the express enactment of the statute it self. It follows, therefore, that in the trial of appeals from justices' courts, the circuit courts must conform to the mode of procedure in use prior to the passage of the present practice act. When the court tries the cause as a jury, instructions must be asked, as formerly, as declarations of the law of the case. No finding of the facts is necessary. Upon an appeal to this court, the evidence deemed material and the instructions given and refused must be preserved in a bill of exceptions. This case, then, stands as one under the old practice, in which a trial has been had by the court and no instructions asked. Under such circumstances, the cause cannot be reviewed in this court. The judgment, therefore, will be affirmed with the concurrence of the other judges.
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