The defendant's argument upon the motion is, that the intent of the act was not to enlarge or diminish the remedy in any suit heard and tried before the statute went into effect; that to the points ruled in the course of the trial against him the defendant could not except, and upon those, he would be concluded, though vital to his case; and that to allow the plaintiff now to be heard, merely because such rulings as were against him were made after the act went into operation, is to render the act obnoxious to the charge of being retrospective in its operation.
It is evident, that the legislature did not contemplate that a retroactive operation should be given to this act; that it should directly affect any ruling, judgment, or opinion made or given before it went into effect, but should apply to such only as might thereafter be made; and had the final judgment in this case been given before the first day of July, neither party could have excepted to it. So far as the act is to be applied to the matter of these exceptions no retrospective operation is given to it. These matters occurred after the act was in force. They *Page 375 are within the terms of the act, and within its apparent purpose; a ruling made by which the party excepting is aggrieved. It was deemed an evil that no mode was provided for reviewing the judgment of a special court of common pleas, leaving the judgment there final. This evil was to be remedied by the provisions of this act; and the question is reduced to this, whether we shall give full effect to the remedy provided, by correcting any errors which have occurred since the act, because we cannot reach those committed before, and which are not within its terms. This, as it seems to us, is no sufficient reason. If indeed, for the purpose of applying the remedy in such case, the act is made to operate injuriously upon the other party, it might be a reason for declining to apply it. But we do not see any such injurious consequences arising, even incidentally. It is suggested, that the defendant here could not except to the rulings against him. But the judgment is now for him; and if, upon the points excepted to, the opinion of the court here should be in the plaintiff's favor, he may, upon a new trial, have the benefit of all the points which he may have made, or may deem necessary to his defence. It is not necessary that the court should enter a final judgment, even though it may do so; but it may remit the case to the court below, for new trial, or may order a new trial here; and in the circumstances suggested, would guard the rights of all parties.
We think, therefore, that these exceptions are within the terms of the act; and that in entertaining them, no injuriously retrospective operation is given to the act, in hearing the parties upon them; on the contrary, it is for the advancement of justice that they should be heard.
Another ground for dismissing these exceptions, urged by the defendant, is, that, as this case was submitted to the determination of the justice who heard the cause, without the intervention of a jury, he is thereby made an arbiter, and his determination of both law and fact is conclusive.
The statute authorizes the parties to waive the jury trial, and in that case, provides, that the court shall hear and determine both law and fact. In such case, the judge is substituted to the jury for the determination of the fact; but his character *Page 376 as judge is not changed, nor is the party's right to review his opinion, ruling, or judgment, in any matter of law arising in the case. This right is expressly given by the Revised Statutes. The same construction is given, in Maine, to a statute of that state, similar to this. School Fund, Andover, v. Reed, 39 Maine, 41. In every case where matter of law appears upon the record, or is brought upon the record, by a summary bill of exceptions, the act expressly provides that the exception may be taken to this court.
The objection made by the defendants, that the matter excepted to is not matter of law, but is, in truth, an exception to the finding of a fact, is altogether untenable. There is no fact in dispute. The facts are all admitted, and the only question is what is the law arising upon them. The construction of the levy and deed was not matter for the finding of a jury, but matter, the facts being admitted, for the court; and the court passed upon that question, and gave the opinion that the levy was void. The court, in fact, have announced the opinion which it must have given to the jury, had the case been submitted to one; and the question is, is that opinion upon law, right.
The motion to dismiss must be overruled.