1789, commonly known as the "Judiciary Act," which provided "that there shall be no reversal in the supreme court or in the circuit court, upon a writ of error, for any error of fact," the supreme court of the United States held that no exception could be taken where there was no jury, or where the question of law was decided in the final judgment of the court. U. S. v. King, 7 How. 832; Craig v. State of Mo., 4 Pet. 410. The purpose, therefore, of section 4, Act March 3, 1865, was to confer upon the supreme court jurisdiction to pass upon such rulings of the court below as were excepted to at the time, and also to review the judgment of the court upon the question as to whether facts specifically found by the court were sufficient to support its judgment. The evident purpose of the legislation to which we have referred was to get rid of that infallibility which from time immemorial had attached, in all common law jurisdictions, to the verdict of a jury upon questions of fact. It had been demonstrated by experience that twelve men taken from the body of the vicinage, though "good and lawful" they may be, are in nowise safer arbiters of complicated facts, enveloped, it may be, in the mysteries of arts and sciences, than a lawyer trained in the art of weighing testimony, and experienced in the manner of the application of the rules of evidence. Hence it is that in many, if not in all, the states, the jurisdiction of the courts of equity has been from time to time enlarged and made to comprehend, at least concurrently, many of the oldest and best established matters of common law jurisdiction. The act of congress already referred to, as embodied in section 649, Revised Statutes, accomplished only in part the reformation intended to be ingrafted upon the common law practice; for having provided that the findings of the court, whether general or special, should have the force and effect of the verdict of a jury, it provided no

means whereby such a judgment might be reviewed. Hence it was held that the judgment of the court trying a cause, by stipulation waiving a jury, was in the nature of an award by a referee, and could not be reviewed. In order to meet this objection, and provide a means by which the findings of the trial judge might be reviewed, congress passed the act already referred to, as found at section 700, Revised Statutes. It is to be observed, however, that in none of the legislation to which reference has been made is there the slightest indication of any purpose upon the part of congress to change or modify the common law rule that the ascertainment of the facts in the trial of a common law cause is a matter of nisi prius jurisdiction. It is not a change of forum, but the substitution of the opinion of the judge for that of the jury, and is to that extent only a partial abrogation of so much of the ancient maxim as declares, "ad questiones facto non respondent judices." But right here we encounter what we believe to be the fatal error in the position assumed by the counsel for the appellants. It was not the purpose of congress, nor our legislature, to invest the appellate court with jurisdiction to pass upon the weight of the testimony introduced in the court below, but upon the sufficiency of the facts found by the court to sustain the conclusions of law. In cases of this character the judgment of the court below as to the credibility of witnesses and the weight of testimony has the same effect as is given to the verdict of a jury. The only revisory jurisdiction conferred upon the appellate court was to determine whether the facts found by the trial judge were sufficient to warrant the conclusions of law. So that by this amendatory legislation the forum for the determination of the weight of evidence was not changed. In the case of Guild v. Frontin, 18 How. 135, it was said: "Parties may, by consent, waive the trial of issues of fact by a jury, and

submit the trial of both fact and law to the court. It will not be a mistrial. But, if they wish the judgment of the court to be reviewed on a writ of error, a special verdict or agreed statement of facts must be put on the record." And in Suydam v. Williamson et al., 20 How. 427, it is said: "It is of the very essence of a special verdict that the jury would find the facts on which the court is to pronounce the judgment according to law, and the court, in giving judgment, is confined to the facts so found; and every special verdict, to enable the appellate court to act upon it, must find the facts and not merely state the evidence of facts. So that where it states the evidence, merely, without stating the conclusions of the jury, a court of error can not act upon matters so found." In the case of Kelsey et al. v. Forsyth, 21 How. 85, Chief Justice TANEY, delivering the opinion of the court said: "It will be seen from this statement that a common law action of ejectment was submitted to the court upon the evidence without the intervention of a jury, leaving it to the court to decide the facts, as well as the law, upon the evidence and admissions before it. The case, therefore, is the same in principle with that of Guild et al. v. Frontin, 18 How. 135; and the doctrine in that case was reaffirmed in the case of Suydam v. Williamson, 20 How. 428, and the grounds upon which it rests fully set forth." In the case of Campbell v. Boyreau, 21 How. 223, the chief justice said: "The finding of issues of fact by the court upon the evidence is altogether unknown to the common law court, and can not be recognized as a judicial act. Such questions are exclusively within the province of a 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 power in deciding, but acts, rather, in the character of an arbitrator; and this court, therefore, can not 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 admissions of the parties." This case is not cited as authority applicable to the case at bar, because, as we have already seen, it was the purpose of the act of March 3, 1865, to confer this jurisdiction. In the case of Prentice v. Weissenger, 8 How. 485, in a lengthy review of the decisions affecting this question, after going on to show that it was impossible for that court to determine whether inferences or conclusions of fact were correctly drawn, the court say that such a determination is the proper province of the jury, or of the judge himself, if the trial by jury is waived. In the case of Graham v. Bayne, 18 How. 63, it was said: "The counsel in this case have agreed that 'if it should be necessary, to a hearing of this cause in the supreme court, to treat the evidence in the nature of a special verdict,' this agreement may be good, as between themselves, and point out the source from which the facts for a case stated or special verdict may be drawn; but it can not compel this court to search through the evidence to find out the facts. The record exhibits the testimony and evidence laid before the judge. It is evidence of facts, but not facts themselves, as agreed or found. No mere agreement of counsel can substitute evidence of facts in place of facts, or require the opinion of this court on an imperfect statement of them. A writ of error can not by these methods be converted into a chancery appeal, nor a court of error into appellate arbitrators."

In the case of Burr v. Des Moines Navigation Railway Co., 1 Wall. 99, Justice MILLER, after referring to the fact that, according to Sir William Blackstone, error did not lie to a statement of facts, under the English practice, an agreed statement of facts not being in the nature of a special verdict, proceeds as

follows: "Under the practice of our courts, such agreements are signed by counsel, and spread upon the record at large, as a part thereof; and thus they become, technically, a part of the record, into which the appellate court look, with the other parts of it, to ascertain if there be error. The statement of facts on which this court will inquire if there is, or is not, error in the application of the law to them, is a statement of the ultimate facts or propositions which the evidence is intended to establish, and not the evidence on which those ultimate facts are supposed to rest. The statement must be sufficient, in itself, without inferences or comparisons, or balancing of testimony or weighing evidence, to justify the application of the legal principles which must determine the case. It must leave none of the functions of a jury to be discharged by this court, but must have all the sufficiency, fullness, and perspicuity of a special verdict. If it requires of the court to weigh conflicting testimony, or to balance admitted facts, and to deduce from these the propositions of fact on which alone a legal conclusion can rest, then it is not such a statement as this court can act upon. The paper before us is the evidence of facts, and not the facts themselves, as agreed or found." Graham v. Bayne, 18 How. 62. It is to be noted that the concluding part of section 649 of the Revised Statutes, and the concluding part of our own statute, each places a limitation upon the exercise of the authority intended to be conferred. In the federal statute it says that such finding shall have the same effect as the verdict of a jury, while in the territorial statute it is declared, substantially, that such finding shall be reviewed in the same manner, and to the same extent, as if the cause had been tried by jury. It is further to be observed that under the federal statute, if such finding were general, it could not be disturbed at all; and in cases where the finding is special the review may extend, not