Sturgis v. Merry , 3 How. Pr. 418 ( 1849 )

The Court held that the code had not altered the former practice as to the mode of reviewing cases of this kind in an appellate court. A case should have been settled by the Supreme Court, and inserted in the record, stating facts, and not the mere evidence of facts, so as to present nothing but questions of law to the appellate court. As to questions decided by the referee in receiving or rejecting evidence, and the like, the case is in the nature of a hill of exceptions; and as to the merits,- it is in the nature of a special verdict, which must find facts, and not the mere evidence of facts. (11 Wend., 417; 17 Wend., 169; 20 Wend., 663.) The court refused to entertain jurisdiction, and dismissed the appeal