#### * William Wellington *versus*Jonathan Stratton, Jun.

In an appeal to this Court from a judgment of the Common Pleas, rendered upon a case stated by the parties for the opinion of that court, this Court will not inquire into the merits of that judgment, unless there is something in the record to show that it was erroneous.

The plaintiff declares in a plea of *debt,*for that the said *J. S.,*on the 2d of January, 1813, before *L. Bigelow,*Esq., one of the justices of the peace, &c., acknowledged himself to be indebted to the plaintiff in the sum of 20 dollars, which he consented to be levied of his goods, &c., with condition that the same recognizance should be void if one *Jonas Batchelder*should prosecute an appeal by him made from a judgment given against him in favor of the plaintiff at a court holden before the said justice, at the next Circuit Court of Common Pleas, &c., and should pay all intervening damages and costs. And the plaintiff avers that the said *Batchelder*did not prosecute his said appeal, nor pay all intervening damages and costs. Whereupon the plaintiff entered his complaint at the Common Pleas, and judgment was there rendered that the plaintiff should recover against the said *Batchelder*10 dollars 96 cents damages, and 12 dollars 18 cents costs; which said judgment is in full force, &c., whereby an action has accrued to the plaintiff, to demand and recover of the said *Stratton*the said sum of 20 dollars, with other due damages for the. detention thereof; yet the said *Stratton,*though requested, has not paid the same; but still owes and unjustly detains it.

At the Common Pleas, the parties agreed to submit the action to the determination of that Court upon the following facts, *viz. :*That a judgment was recovered by the plaintiff before *L. Bigelow,*as he had set forth in his declaration; that the defendant entered into the recognizance, as the declaration alleges; that the said *Batchelder*failed to enter and prosecute his said appeal, and the judgment aforesaid was affirmed upon the complaint of the plaintiff, with additional damages and costs, and an execution which issued thereon was returned in no part satisfied; that the said recognizance was returned to the Court appealed to, and there regularly entered of record; and that all the material allegations in the plaintiff’s declaration are true. If the said * Court of [ * 395 ] Common Pleas should be of opinion that the plaintiff was by law entitled to recover the whole penalty of the said recognizance, it was agreed that judgment should be rendered therefor with legal costs; but if the said Court should be of opinion that *358they had chancery powers in the premises, then it was agreed that judgment should be rendered for intervening damages and costs only, and that execution should issue accordingly.

Upon this agreement of the parties the Common Pleas rendered judgment for the plaintiff for the penalty of the recognizance, and awarded execution for the sum of 7 dollars and *72*cents, being part of the debt aforesaid, with costs of suit.

From this judgment the plaintiff appealed to this Court; and now it was argued, by *Burnside*for the plaintiff, that the court below had no chancery powers in the case.

On the part of the defendant, it was contended by *Lincoln*that this Court would not sustain an appeal from a judgment rendered by the Common Pleas in a cause referred to them by the parties on an agreed statement of facts.

The action being continued *nisi*for advisement, the opinion of the Court was delivered, at the succeeding March term in *Suffolk,*by

Jackson, J.

It has been decided that a writ of error does not lie upon a judgment rendered on a case stated by the parties for the opinion of the Court. (1) By this expression it is not meant that the Court of Errors has no jurisdiction of the cause which is brought before them. They must adjudge upon the record, which is removed by the writ of error: and accordingly, in the case cited, the court did affirm the judgment complained of.

The principle established is, that, when the parties *have agreed,*that a certain judgment shall be rendered for either of them, according to the opinion of the judges, on a case stated, the Court of Errors cannot rescind that agreement, and enter a different judgment. It is the same in principle as if they had [ * 396 ] agreed that judgment should be entered according * to the opinion of any other individuals; or that it should depend on any other collateral event. When the opinion is given, or the other event happens, and the judgment is entered accordingly, it is so entered by the consent and agreement of the parties, in like manner as if they had in any other mode ascertained what was right and just between them, and had afterwards come into court and consented to a judgment accordingly.

■ We see no material difference between a writ of error and an appeal, as to the point now under consideration. An appeal, in our practice, opens the whole case, as to the facts as well as the law. But if there be no issue of fact, the Court of Appeals must decide on the questions of law presented by the record, in the same manner as if it were brought before them by a writ of error.

*359In the case now before us, there is no issue of fact to be tried. There was no issue of law in the Court of Common Pleas; and their judgment must be affirmed, unless there is something in the record to show that it was erroneous. The only objection suggested is, that the opinion of the judges of that court on the question submitted to them, and by which the parties agreed to be governed, was not conformable to law. Whether it be so or not, is a question not presented to us on this record. The case was not stated for our opinion, nor did the parties agree to submit to us. If, therefore, we should have entertained a different opinion on that question, this cannot affect the determination of the present cause. The judgment complained of was rendered by the consent of the parties, and it must be affirmed, *(a)*

*Judgment affirmed.*

(1)

1) 9 *Mass Rap.*329, *Carroll & Al.*vs. *Richardson.*

(a)

*Alfred*vs. Saco, 7 *Mass. Rep.*360. — *Carroll & Al.*vs. *Richardson,*9 *Mass. Rep*329.— *Gray*vs. *Storer,*10 *Mass. Rep.*163. — *Forsith*vs. *Shaw,*10 *Mass. Rep.*253. *Coffin*vs. *Cottle,*4 *Pick. 454.—Bacon*vs. *Ward,*10 *Mass. Rep.*143, and note.