The opinion of the court was delivered, by
Sharswood, J.— We have upon this record but a single exception to the judgment of the court below upon points reserved as arising upon facts stated in the bill of exception. If these were the facts of the case there can be no question that the judgment was right. But the plaintiff here assigns as error that the court below erred in certifying disputed facts against the consent of counsel. But how does that appear? Omnia prcesumuntur rite esse acta. If it did appear how can we notice it without an exception ? The plaintiff has no other exception except the bill in question, and that does not show any exception to the statement of the facts. One of the facts, and the principal one, the judge certified to have been found by the jury. This is certainly a very irregular and unlawful manner of making out a bill of exceptions, and if an exception had appeared it could not have stood for a moment. The defendant had a right to require the disputed facts to be submitted and found specially by the jury, so that they should appear in the record as part of the verdict if it was proposed to resérve a question of law. If this was not done he should have required the judge to state a bill of exceptions to the reservation in any other mode. If the judge refused to answer the defendant’s points a bill should have been tendered to such refusal. It is certainly asking too much of this court to presume that the learned judge, without the consent or. acquiescence of the parties, undertook in his bill to find the fact as well as to decide the law.
Judgment affirmed.