delivered the opinion of the court,
What constitutes a good reservation of a question of law arising on the trial of an issue of fact under the Acts of 28th March 1835, Pamph. L. 90, and 22d April 1863, Pamph. L. 554, has been frequently before the court. The rules established are not arbitrary ones, but arise from the necessity of maintaining the distinction between the respective provinces of the court and jury. Hence in order to a good reservation the facts on which the question arises must be found by the jury or agreed by the parties. They must appear on the record by the verdict or agreement. The judge cannot himself draw conclusions of fact from the evidence: Irwin v. Wickersham, 1 Casey 316; Winchester v. Bennett, 4 P. F. Smith 510. Hence the reserved question must be a pure question of law. It cannot be of a mixed question of law and fact, for that -would necessarily draw to the court what properly belongs to the jury : Wilds v. Trainor, 9 P. F. Smith 439; Campbell v. O’Neill, 14 Id. *380290. Tested by these-rules the reservation in this case cannot be supported, and as it was excepted to below and has been assigned for error here, the judgment must on that account be reversed. Whether the whole or any portion of the money in the hands of Painter & Co., or with Jay Cooke & Co., was authorized by the charter of the bank, and also whether or not the bond of defendant is legal and valid, which were the questions reserved depend evidently upon facts which are neither found nor agreed. Under what contract, upon what terms the money was in the hands of these parties, are facts essential to the determination of the first of these, questions; and a great variety of circumstances might enter into the decision of the second. The court by whom the reserved point is to be determined either below or in error are not to look through the evidence to ascertain them. They should be so stated as to enable the court to give a final judgment without sending the case to another jury, however the reserved question may be decided. Now here if the court should be of opinion that the bond of the defendant was illegal, or that the money deposited was authorized, judgment might be entered for defendant. But if the court should arrive at a different conclusion that the bond is legal, and the money deposited not authorized, what judgment is to be entered for the plaintiff ? Surely not for the amount of the penalty, unless the sums deposited exceeded that amount. This necessary fact is not found or agreed. Suppose some deposits were authorized and some not. How is the court to draw the line ? It would be fruitless therefore to consider what is a good investment under the charter, and the liability of the defendant under his bond, which seems to have been the questions intended to be reserved, conceding even that to be a pure question of law, since no judgment could be entered on this record.
Judgment reversed and venire de novo awarded.