I feel it to be my duty to dissent from tbe practice which I conceived is sanctioned by tbe opinion of my brethren in tbis case.
*776The record shows there was a contest respecting the validity of McNeil’s demand, and he adduced before the- judge much proof in relation to it, some of which was rejected, and the remainder was adjudged insufficient to support the claim, which was consequently rejected. The exclusion of the proof by the judge, and his decision upon that which was admitted, in rejecting the claim, are assigned for error. True, no formal issue appears in the record; but this is not assigned for error, and the rule of practice heretofore adopted is, to consider no matters not assigned. Minor’s Rep. 11-23-35; Stebbins v. Fitch, 1 Stew. Rep. 180; Long v. Rodgers, 19 Ala. Rep. 328. It is said the rule goes farther, and justifies the court in declining to consider matters which, though assigned for error, are not insisted on in argument by the counsel. Cunningham v. Carpenter & Watson, 10 Ala. Rep. 109. The general assignment that the court erred in rejecting the claim, does not in my opinion raise the question of error in allowing the parties to proceed in the absence of a formal issue. It was competent for the parties to have waived this in the court below; and I presume they did, or the objection would have been taken in that court, and assigned for error in this.
Again: the statute requires the issue to be tried as at common law, that is, by a jury; but the parties can waive a trial by jury, and submit the matter of contest to the adjudication of the judge. The bill of exceptions taken by McNeil, the plaintiff in error, and which must therefore be construed most strongly against him,"shows, that he submitted his proof to the judge, but fails to show that he was forced to' do this, or denied a jury, or that he raised any objection to this mode of trial. Then is it npt the reasonable and legitimate intendment, that he consented that the court, instead of the jury, should decide upon the facts ? I hold that it is, and that the verdict of the judge on the facts is as conclusive as if rendered by a jury, and is no more the subject of revision by this court. Ethridge v. Malempre, 18 Ala. R. 565. If he erred in excluding the proof, however, that error may be reviewed, although he excluded it from his own consideration.
Under the decision of my brethren, the presumption is indulged, against the regularity of the judgment, and in favor of *777tbe party excepting, tbafc be submitted proof in support of bis claim, tbe justice and validity of wbicb were not impugned, and that tbe court actually rejected tbe claim, of tbe correctness of wbicb there was some proof, although no objection was taken to its allowance.
Thus, McNeil is enabled to speculate upon tbe chances; for bad tbe court allowed bis claim, it were well, and tbe judgment founded on the judge’s finding irreversible; but having failed in tbe contest to obtain a judgment of allowance, be is permitted to reverse tbe decree rejecting tbe claim, because tbe record discloses no formal contestation. Tbe result, therefore, is that tbe case is sent back that a formal issue may be joined; and it may be, to return upon us with tbe same questions wbicb have already been twice argued, but are left undecided.