(dissenting). I concur in the opinion of the court that a new trial should be granted for error in the ruling of the Court of Common Pleas -with respect to the burden of proof, and that, under the Act of 1893, this error can be made to appear by our action in enlarging the finding of facts, by reference to the statements in the memorandum of decision. I also concur in the position that the terms of that Act are not such as to require this court to determine, upon evidence spread upon the record, questions of pure fact settled by the trial court, which are not connected with any questions of law, as to the decision of which error is assigned.
*467But I do not think it necessary to justify such a construction of the statute, that we should enter into any inquiry as to the constitutional limits of the jurisdiction of the Supreme Court of Errors ; still less that we should hold that those limits are unalterably defined by its very name, in such a manner as to exclude it from ever taking cognizance of errors of fact, except in aid of its power to remedy errors of law.
The original draft of the first section of the judiciary article of our Constitution (article V.), as reported to the Convention of 1818, read thus:—
“ The Judicial power of the State shall be vested in a Supreme Court of Errors, a superior Court, and such inferior Courts as the General Assembly shall from time to time, ordain and establish. The powers and jurisdiction of which Courts shall be defined by law.” Journal of the Constitution, as printed by the State, Hartford, 1873, p. 89.
The first sentence of this was manifestly taken from article III. of the U. S. Constitution, § 1, i. e., “ The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
This section of our Constitution was approved in the form reported. Journal of Convention, p. 39. The whole Constitution was afterwards referred to an engrossing committee “ for the purpose of correcting verbal inaccuracies and errors in phraseology.” Journal, p. 67. Upon their report, it was adopted section by section (ibid., p. 68), that in question being changed only by the substitution of a colon, for a full period, after the words “ ordain and establish,” so that it now appears in the following form :—
“ The judicial power of the State shall be vested in a Supreme Court of Errors, a Superiour Court, and such inferiour courts as the General Assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.”
Undoubtedly this provision requires that there shall always be in this State two courts, one known as a Supreme *468Court of Errors, and one as a Superior Court. Undoubtedly, also, the Supreme Court of Errors must always be the court of last resort for the correction of the errors of inferior judicial tribunals, and the Superior Court must he a court of superior jurisdiction to such inferior courts as may, from time to time, be established. But the words used do not seem to me necessarily to confine the Supreme Court of Errors to the business of passing upon errors of law only; nor to invest the Superior Court with “ a supreme jurisdiction, original and appellate, over the trial of all causes not committed to the jurisdiction of inferior courts.” Such a meaning can only be read into them, by assuming that, in giving to these courts the names of courts then existing, it was meant to give them also substantially the' same jurisdiction. This seems to me to be pressing the historical argument too far.
The Supreme Court of Errors had then only existed for thirty-four years. It was not much more venerable for antiquity than the Court of Common Pleas is now. Its judges were not to continue in office beyond June 1st, 1819. They consisted of the nine judges of the Superior Court. The Supreme Court of Errors had jurisdiction to review no judgments except those of the Superior Court. Statutes, Ed. 1808, p. 219.
The Superior Court had exclusive “jurisdiction of all writs of error, brought for reversal of any judgment of the county court, or any inferior court; or of an assistant or justice of the peace, in civil or criminal causes.” Statutes, Ed. 1808, p. 260. It had had this jurisdiction from early Colonial times. Ibid., p. 260, note 1. Such writs of error lay both for errors in law and errors in fact. 1 Swift’s Dig., (side page) 790.
It had also a large original jurisdiction over questions of fact; trying cases with or without a jury. Appeals lay to it from judgments of City Courts for a re-tr.ial of questions of fact, as well as writs of error, assigning errors in law,Statutes, Ed. 1808, p. 127.
Each Superior Court was to be held by three judges. Ap*469peals lay to it from judgments of the county courts in law actions, for a re-trial of matters of fact, except in matters (not affecting title to land) involving not over $70, or bonds or notes vouched by two witnesses. Statutés, Ed. 1808, p. 37. No appeal ordinarily lay to it in equity cases. Id., p. 225, § 1.
Immediately after the adoption of the Constitution, the General Assembly passed an “ Act constituting and regulating Courts.” Statute Laws, Book II., 1819; Acts of 1818, p. 311. This provides that after June 1st, 1819, the Superior Court should consist of one chief judge and four assistant judges, to be appointed for that purpose, and that they “shall constitute the Supreme Court of Errors, and shall have and possess, all the powers and authorities now by law vested in the Supreme Court of Errors.” It further provided that the Superior Court should be thereafter held by one judge.
This Act of 1818 established the two courts specially called for by the Constitution of 1818.
The Constitution did not execute itself. It was for the legislature to constitute each court and define its powers and jurisdiction; and by this Act, it was done. If the ordinary rules of grammar are to be respected, the last clause in § 1 of article Y. both as originally punctuated, and as finally engrossed and 'adopted, qualifies each member of the preceding clause. Its construction must be the same as if it read thus: “ The judicial power of the State shall be vested in a Supreme Court of Errors, the powers and jurisdiction of which shall be defined by law; a Superior Court, the powers and jurisdiction of which shall be defined by law; and such inferior courts as the General Assembly shall, from time to time, ordain and establish, the powers and jurisdiction of which shall be defined by law.”
And so, it seems to me, the General Assembly of 1818 understood it and executed it. The constitution of each of the two courts named was made quite different from that of the court of the same name previously existing. The judges of each were to be still the same, but their number was reduced from nine to five, and in place of the three *470judges who theretofore sat at each term of the Superior Court, it was henceforth to be held by one, alone.
The jurisdiction of each court was defined and made the same that it had been; but the power that made it the same might, at its discretion, have made it different, save only so far as the constitutional name of each court established its character.
Subsequent legislation has radically changed the jurisdiction of the Superior Court. It has abolished the right of re-trial there, on appeal, of cases once tried in inferior courts. It has abolished most of its jurisdiction by proceedings in error, to review the judgments of inferior courts. It has taken away a large part of its original civil and criminal jurisdiction, in favor of the Courts of Common Pleas and City Courts, some of the latter of which have jurisdiction over cases involving any amount in value, where the parties reside in the city.
In respect to the Supreme Court of Errors, the ancient statute which was relied on in Dudley v. Deming, restricting its jurisdiction to writs of error or analogous proceedings for errors in law, has been replaced by General Statutes, § 815, which is broad enough to include any errors of fact. The court has repeatedly taken cognizance of writs of error for an error of fact, similar to a writ of error coram nobis at common law. Burgess v. Tweedy, 16 Conn., 39, 43; Nugent v. Wrinn, 44 Conn., 273.
The legislature gave this court, for the first time, in 1821,' the power to grant (not, as before, to advise) new trials for verdicts against evidence. The disposition of such motions is, in substance, a re-trial of questions of pure fact. The common law gave the power to set aside such verdicts to the trial court, upon its own minutes or recollection of the evidence. Our statute of 1821 gave it to the Supreme Court of Errors, on a finding by the trial court, in which the evidence was stated; and gave it as a discretionary power. Statutes, Ed. 1821, p. 54, § 68. How does this differ in principle from a jurisdiction to review findings of a trial judge because clearly against the weight of evidence ? Each *471finding, that of the jury, and that of the court sitting without a jury, is a step in a judicial proceeding, and errors in either seem therefore to me to be a proper subject of correction by the supreme judicial power of the State, if the legislature so wills. Neither, however, in strictness, presents any question of law. Fuller v. Bailey, 58 N. H., 71; Little v. Upham, 64 N. H., 279, 6 Atlantic Rep., 220; Young v. Davis, 30 N. Y., 134. If this court can grant new trials in the Superior Court, because a jury of twelve men came to wrong conclusions of fact, I believe the legislature could also authorize it to grant new trials there, because one man, the judge, sitting instead of a jury, came to wrong conclusions of fact.
It is asserted in the opinion of the court that the creation of a Supreme Court of Errors in 1784 “was the deliberate adoption into our system of judicature of the fundamental principle, which has ever since characterized it, that the certainty of our jurisprudence as well as the security of parties litigant depends upon confining the jurisdiction of a court of last resort to the settlement of rules of law; ” or, as it is elsewhere phrased, “ the underlying principle involved was that the administration of justice is not safe when the court of last resort for the settlement of the law, in the exercise of an absolute and final power, can render judgment on facts and law so intermingled that its decision is not simply the declaration of the law but may become the arbitration of the case.” This principle, it is affirmed, was incorporated in our Constitution by force of the name given to this court, because it “ expressed the conviction of the people that a jurisdiction of mixed law and fact vested in any court of last resort, exercising a supreme and uncontrolled power, was inconsistent with a sound system of jurisprudence and was dangerous to the administration of justice.” But the framers of our Constitution were familiar with the practice of English chancery, as well as with that in the courts of the United States. A party aggrieved by a decree of the Lord Chancellor could always appeal, and have his case reheard on the same evidence in the House of *472Lords. 2 Madd. Ch., 435. In chancery only were the facts determined bjr the court, and while England was content to make the verdict of a jury final, in ordinary cases, it refused from the first to accord similar respect to the findings of any single judge. The Judiciary Act of the United States, adopted by Congress in 1789, and which was largely the work of one of the greatest lawyers and judges of Connecticut, Oliver Ellsworth, followed in the same lines, by restricting the appellate jurisdiction of the Supreme Court, in actions at law, to the remedy by writ of error, while giving a general appeal from final decrees in equity or admiralty. In 1796, Ellsworth, as Chief Justice of the Supreme Court of the United States, referred to this distinction as to the right of review, in'these words : “ An appeal is a process of civil law origin, and removes a cause entirely : subjecting the fact as well as the law, to a review and re-trial: but a writ of error is a process of common law origin, and it removes nothing for re-examination hut the law.” Wiscart v. Dauchy, 3 Dallas, 327.
Pierpont Edwards, the chairman of the committee appointed by the Convention of 1818 to report a draft of a Constitution, and who, as such, reported this article as to the judiciary, was, at the time, the judge of the District Court of the United States for this district. Stephen Mix Mitchell, William Bristol, Nathan Smith, Alexander Wolcott, (who had been nominated by President Madison, a few years before, as an associate justice of the Supreme Court of the United States,) William Hungerford, John S. Peters, and others familiar with the practice in the Federal courts, were members of the convention. Then, as now, this mode of rehearing equitjr causes in those courts, on appeal, upon both fact and law, was familiar and acceptable to the bar. It was seldom that the appellate court differed from the trial court in its conclusions of fact, and only when they were deemed . to he clearly against the weight of evidence. For over a century the Supreme Court of the United States has exercised this “ jurisdiction of mixed law and fact,” in a large and important class of causes, with “supreme and uncon*473trolled power,” and Congress has recently given similar powers to the Circuit Courts of Appeals. I cannot believe that the Convention of 1818 was convinced that the existence of such a jurisdiction “ was inconsistent with a sound system of jurisprudence, and was dangerous to the administration of justice.”
Similar legislation to that of the United' States has been had (following the English chancery practice) in many of our States, and has occasioned no inconvenience which has not been thought to be outweighed by the advantages gained. Reed v. Reed, 114 Mass., 372; Baird v. Mayor, 96 N. Y., 567; Worrall's Appeal, 110 Pa. State, 349, 1 Atlantic Rep., 380; Deacon v. Van Nuys, 129 Ind., 580, 28 Northeastern Rep., 865; Baker v. Rockabrand, 118 Ills., 365, 8 Northeastern Rep., 456; Code of Iowa, § 2472; see also Public Statutes of R. I., Rev. of 1882, p. 526, § 8.
The opinion of the court declares that “ the Supreme Court of Errors is not a supreme court for all purposes, but a supreme court only for the correction of errors in law; if its jurisdiction also included the determination of facts, it would then be supreme for all purposes, and its name a misnomer.” This seems to me to confuse a jurisdiction for the determination of facts with a jurisdiction for the determination of errors of fact. If a trial court comes to erroneous conclusions of fact, the revision of its action, by correcting the errors in its conclusions, is a determination of the facts, only as a mode of the redress of errors. In many cases, indeed, a finding of fact may be, of itself, an error of law. It is so when it is made without any evidence of the fact, as to matters not the subject of judicial notice. The E. A. Packer, 140 U. S., 360; Mason v. Lord, 40 N. Y., 476. And to refuse to find a material fact which was in issue and was proved by uncontradicted evidence, is also an error of law. U. S. v. Adams, 9 Wall., 661; Commercial Union Assurance Co. v. Seammon, 126 Ills., 355, 18 Northeastern Rep., 562; Whitman v. Winchester Repeating Arms Co., 55 Conn., 247; Kennedy v. Porter, 109 N. Y., 526, 17 Northeastern Rep., 426 *474Bedlow v. N. Y. Floating Dry Dock Co., 112 N. Y., 263, 19 Northeastern Rep., 800; Fernald v. Bush, 131 Mass., 591.
The word “errors” certainly includes such errors of fact as were, at common law, grounds for a writ of error coram nobis. It seems to me a sticking in the bark to say that it can include no others. In the Dartmouth College case, a similar claim was pressed. There were, it was argued, few corporations in existence when the Constitution of the United States was adopted, and the theory that the charter of a corporation was a contract with the State was unknown. But, Chief Justice Marshall replied, “it is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.” Dartmouth College v. Woodward, 4 Wheat., 518.
The Act of 1893, it is decided in this case, is an enlargement of the jurisdiction of this court, by which it can now, to a greater extent or with more facility than formerly, redress errors in the finding of a trial court, as to conclusions of fact. Whether the General Assembly can hereafter, should it deem proper, extend our powers in this direction still farther, is a question which, it seems to m.e, is beyond the issues now presented for our determination. It is one that may never arise; but, if some future statute should present it, the rule of construction announced in the opinion of the court, although, if I am right in my view of this case, it is but an obiter dictum, would certainly be appealed to as an authority by those who might then contend that the legislature had transcended its powers. It is for this reason that I have expressed at length the grounds of my dissent from it.