Opinion of the Court. 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 § 649 Revised Statutes 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 novo by the appellate court for some error of law. Insurance Co. v. Folsom, ubi supra. The court below having made a general finding, which Opinion of the Court. 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 was 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 arising upon the pleadings or the trial. Those attempted to be raised refer to the evidence, as embodied in the record, but which, in 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 "when 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." United States v. King, 7 How. 832, 853. See also Craig v. The State of Missouri, 4 Pet. 410, 427. 4 of the act of March 3, 1865, was passed to allow the Syllabus. 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. The cases, The Town of Sheldon v. C. W. Day and The Town of Sheldon v. J. II. Fairbanks, both in error to the Circuit Court of the United States for the Northern District of Illinois, are, in all respects, similar to the case just decided. The judgments in these cases must, therefore, be affirmed; and it is so ordered. STREEPER & Another v. VICTOR SEWING MACHINE COMPANY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. Submitted December 15, 1884.-Decided January 5, 1885. A written agreement between a company making sewing machines, and a consignee to receive and sell them on commission, provided that the commission should be calculated on the retail prices for which the machines should be sold, as reported by the consignee, and that attachments should be sold to the consignee at the lowest wholesale rates. The proceeds of sales of machines, beyond the commission, belonged to the company. In a suit by it against the consignee and a person liable with him, on a bond for his indebtedness, to recover such proceeds, and the sale price of attachments, the complaint set forth schedules showing the retail price of each machine sold, as so reported, and the excess of money, beyond commission, retained Opinion of the Court. by the consignee, and the price of each attachment sold to the consignee : Held, That the complaint was sufficient. The consignee and another person united in a bond to the company, conditioned that the former should pay to it all moneys which should become due under, or arise from, the written agreement, and waiving notice of non-payment : Held, That the liability of the surety arose on the bond, and that of the consignee on the bond or the written agreement, and that the statute of limitations in regard to written instruments governed the case. The condition of the bond extended to the payment of notes made or indorsed by the consignee, and transferred to the company. So far as the surety was concerned, his waiver or notice applied to a default by the consignee. The facts are stated in the opinion of the court. Mr. J. G. Sutherland and Mr. John R. McBride for appellants. Mr. Charles W. Bennett for appellee. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This suit was brought in the District Court of the Third Judicial District of the Territory of Utah, on the 13th of June, 1879, by the Victor Sewing Machine Company, against two persons named Crockwell and Bassett, and two others named Streeper and Murphy. On the 28th of June, 1875, the company, of one part, and Crockwell and Bassett, of the other; entered into a written agreement, whereby the former was (1) to deliver sewing machines, to the latter, as consignees, at Chicago, on their order; (2) the latter to sell them in Utah Territory, and, if possible, for cash; all promissory notes taken to be guaranteed by the latter and delivered to the former; indorsement of the notes by the latter before such delivery to be such guaranty; all notes taken to be payable to the order of the former, not more than twelve months from the date of sale; (3) the latter to sell all consigned machines and remit for them within four months from date of shipment; on failure to so sell and remit, the former, after the four months, to be at liberty to charge the latter with all machines consigned four months, and not settled for, at their retail price, less forty per cent., and such amounts to be immediately due on demand; (4) the latter to Opinion of the Court. report every week machines on hand, and those sold, with terms of sale, and remit the proceeds of sale; (5) on report, and remittance, and approval, the former to credit the latter as follows: On a cash remittance of one-half of the retail price of machines sold, fifty per cent. of their retail price; on sales for notes running not more than six months from sale, forty-five per cent. of such retail price; on sales for notes running more than six, and not more than nine, months from sale, forty per cent. of such retail price; on sales for notes running more than nine, and not more than twelve, months from sale, thirty-five per cent. of such retail price; the latter to be charged with the difference between the amounts remitted and the retail prices reported, and to remit such an amount as will equal the retail price of the machines reported sold (less said commissions), with five per cent. of the retail price of machines sold for notes, such five per cent. to remain with the former till the termination of the contract, and the payment of all notes taken under it, and, after deducting therefrom the cost of collecting the notes, and expenses of settling the contract, the former to pay to the latter such part of the five per cent. as should be due to them; (6) the former to sell parts of their machines at forty per cent. discount from list prices, and attachments at the lowest wholesale rates, both to be settled for with cash every thirty days, unless time should be agreed for, when twenty per cent. should be added to regular cash prices; (7) the former to be at liberty to terminate the contract, and retake their property at any time, charging the latter for loss of or damage to machines; the latter to have the right to take the machines at the retail price as if new, less forty per cent.; the latter to be sole agents for certain counties in Utah while satisfactorily performing the contract; (8) the latter to pay a monthly rent for each wagon furnished by the former; the former to have the right to make, on notice, certain variations in the time of the notes; the latter to be at liberty, for such machines as they shall dispose of during each month otherwise than for cash or note, to give their personal notes, on an average of six months' time, at the retail price of the machines, less forty per cent., or their personal notes on an average of nine months' time, at the retail |