Page:Federal Reporter, 1st Series, Volume 8.djvu/387

TOWN OF LTONS V. LYONB NAT. BANK. J73 �" The finding of issues of fact by the court upoii the evidence is altogether tinknown to a common-law court, and cannot be recognized as a judicial act. Such questions are exclusively within the province of the jury, and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in decid- ing, but acts rather in the character of an arbitrator. And this court cannot, therefore, regard the facts so found as judicially determined in the court below, nor examine the questions of law as if those facts had been conclusively determined by a jury, or settled by the admission of the parties. Nor can any exception be taken to an opinion of the court upon the admission or rejection of testimony, or upon any other question of law which may grow out of th^ evidence, unless a jury was actually empanelled and the exception reserved while they were still at the bar. The statute which gives the exception in a trial at common law gives it only in such cases. And, as this court cannot regard the facts found by the judge as having been judicially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no questions, therefore, open to our revision as an appellate tribunal. Consequently, as the circuit court had jurisdiction of the subject-matter and the parties, and there is no question of law or fact open to our re-examination, its judgment must be presumed to be right, and on that ground only afflrmed." �This decision bas been followed and applied in subsequent cases. �In V. S. V. 15 Hogsheads (5 Blatchf. 106) Mr. Justice Nelson says that wbere in the district court the court is, by agreement of parties, made the judge of both the fact and the law, there can be no bill of exceptions. �In Blair v, AUen, 3 Dill. 101, there was a trial by the district court, in a suit at law, on a stipulation waiving a jury and consenting to a trial by the court. There was a finding of facts by the district court and rulings thereon. On a writ of error the circuit court held that, as the facts were controverted below, and as there was nothing equiva- lent to an agreed statement of facts for the opinion of the district court as to the law arising thereon, it followed that no error of law committed by the district court appeared of record, and the judgment must be affirmed. �In Wear v. Mayer, 6 Fed. Eep. 658, in an action at law in the district court, a jury was waived, and, by consent of parties, the issues of fact were submitted to the court. The bill of exceptions showed a finding of facts by the court in the nature of a special verdict, and there were exceptions to rulings of the court ; but the circuit court, on a writ of error, held that it could not consider any exception taken below. �The question involved is one of the power and authority of the court, and is not such a question of practice or such a form or mode ��� �