The action was replevin. The writ was issued while a vacancy existed in the office of Circuit Judge, and was tested in the name of Charles Upson, Circuit Judge. The Court set aside the writ, because at the time, it was issued, although Judge Upson had been designated by the Governor to perform the duties of Circuit Judge, the Clerk had not been notified of his acceptance. The Circuit Judge then proceeded to assess defendant’s damages, and aunounced that he should give judgment for a specified amount. The plaintiff then requested the Court to find the facts in writing, but he declined to do so.

Held, 1. That the writ was properly tested.

2. That' plaintiff had a right to have a finding of facts in writing.

The judgment below is reversed.