On the facts found by his Honor, we do not concur in the legal inference, “ That the defendants have not used proper and due diligence in endeavoring to receive and collect the “Baxter debt,” and are chargeable with the amount of said debt and interest.” The case was made up and argued before ns on the assumption that this Court had jurisdiction, — upon exceptions filed to an account, to go into all of the evidence and review his Honor’s finding in regard to the facts, as well as in regard to legal inferences. "We are of opinion that the Constitution does not confer such jurisdiction upon this Court; on the contrary, we are of opinion that *43it is expressly prohibited. In Heilig v. Stokes, 63 N. C. Rep. 612, a distinction is taken between “ questions of fact ” on a a motion for an injunction and “issues of fact,” which are conclusive of the case. In Kl-utz v. McKenzie, 65 N. C. 102, it is decided, that upon exceptions 'to the report of a referee, stating an account, this Court cannot review the finding in the .Court below upon the “issues' of fact” made by the exceptions. In Clegg v. N. Y. Soapstone Company, 67 N. C. Rep. 302, it is decided, that upon a motion to vacate a judgment this Court cannot review the finding of his Honor in the Court below upon the facts. So in Powell v. Weith, 68 N. C. Rep. 342, Hudgins v. White, 65 N. C. 393. We consider this matter settled by the plain words of the Constitution : “ The Supreme Court shall have jurisdiction to review upon appeal any decision of the Courts below upon any matter of law or legal inference, but no issue of fact shall be bried before this Court. Art. IV. Sec. 11.” In Foushee v. Thompson, 67 N. C. Rep. 453, Justice RodMAN makes the suggestion, that to allow the finding of the Judge below as to issues of fact, to be conclusive, and not to be the subject of review, confers upon one man a vast and dangerous power. That may be so, and perhaps the danger is guarded against by another clause in the Constitution which, by plain implication, gives to either party the right to have all issues of fact tried by a jury: “ In all issues of fact joined in any Court the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts shall have the force and effect of a verdict of a jury.” Art., IV. Sea. 18. If “issues of fact” made by exceptions to the report of a referee, in stating an account, and the finding of the Judge thereon cannot be reviewed in this Court, which we consider settled, it would seem that such issues, when eliminated by an exception to the report, may be tried by a jury, unless the parties waive the right to have the issue tried by a jury. The remarks made by me in Klutz v. McKenzie, as to the objections to a jury trial, in the old “ action of account,” and my intima*44tion that the parties were not éntitled to a trial by jury, were made on consideration of (J. G. P-, and without advertence to the power of the Constitution, Art. IT. See. 18, and it stands as an open question. But, however this may be, the words of the Constitution are too plain to admit oí discussion or to be refined away by construction. It is ours to interpret the law, not to make it. The manifest purpose of the Constitution is to take from the Supreme Court, as constituted under the new system, the jurisdiction which it had under the old order of things, to try all equity cases, both law and fact, upon appeal or by transfer from the Superior Courts. Whether the issues of fact are tried by the Judge in the Court below, or by the jury^ this Court is expressly prohibited from trying issues of fact, whether made by the pleadings as at law under the old system of pleading, or eliminated from the complaint and answer, by the Court directly, or by means of exceptions to an account, as at equity, under the old system of equity procedure. Taking this to be settled, we confine ourselves to the facts found by his Honor and to his legal inference therefrom, and do not feel at liberty to look into the evidence, which, without answering any useful purpose, encumbers the papers in this case, and will add a large amount of unnecessary costs.
His Honor finds the facts to be: 1st. “That the defendants did not attempt to collect the Baxter note until the Fall of 1862, more than eighteen months after it fell due.” Taking this to be so, it does not warrant the legal inference of a want of due diligence on the part of the defendants, without a finding of the further fact, that the obligors were men in failing circumstances, so as to call for active diligence in the collection, or that the condition of the estate required an immediate collection of this note in order to pay off pressing demands and to save costs.” 2d. “ That the defendants, by their own orders and acts, caused a levy of execution, not to be made until 1866, about three years after judgment, and then the execution was directed to one of the defendants in the execution, and by him as set forth in the record hereto annexed, and then not kept *45up and perfected as a lien on the lands of defendants in the execution, so as to secure the debt.” Taking all this to be so, it does not warrant the legal inference of a want of dne diligence, without a finding of the further fact, that it was for the interest of the trust fund that it should in 1868 and 1864, have been collected in Confederate money, or else the defendants should have taken upon themselves the odium of attempting to collect the debt in specie; and the further fact, that the defendants, in the exercise of due diligence, should have foreseen the fact, that at the close of the war, there was to be a military order forbidding the collection of all debts contracted for the purchase of slaves; and of the further fact, under the construction given to the homestead law, it would be held to apply to pre-existing debts, as in Hill v. Kesler, 63 N. C. Rep. 437, and that such significance would be given to the fact of a levy on land, as in McKethan v. Terry, 64 N. C. Rep. 25. 3d. “That the defendants, when they made the settlement, 27th September, 1863, accounted for the Baxter debt, and undertook to pay off all of the distributees in Confederate money in full and retain the said note themselves, and actually did pay off, tender, or file away Confederate money, for said distribu-tees to the full amount of the estate, the Baxter note included.”
Whereupon the Court declares that the defendants have not used proper and due diligence in endeavoring to secure and collect the Baxter debt, and are chargeable with the amount of the said debt and interest.”
This third fact, as it seems to us, instead of tending to show a want of due diligence, tends to show the contrary, for if the defendants designed to make the Baxter note their own, by settling up the estate in Confederate money and holding back this note for themselves, that relieves them from the implication of a want of diligence in its collection, as it is to be supposed they would use due diligence in collecting a note which they believed had become their own ; although it may subject them to the imputation of an attempt fraudulently to convert to their own use a note belonging to the estate.
*46So his Honor missed the point, and instead of the legal infe. rence of a want of due diligence, he should have considered whether the facts warranted the legal inference of fraud, and then he would have been led to the consideration of the question. can a cestui que trust, who seeks to follow the fund, hold the trustee liable when he has made no profit, and the fund has been lost notwithstanding due diligence on his part to pursue it? If so, a Court of Equity will impose apenalty, for which we find no precedent in the books.
For this finding of his Honor does not warrant the legal inference of a want of due diligmce, and the defendants have made no profits.
The decision is reversed, and the case remanded, to the end that the facts may be more fully found, because his Honor seems under a misapprehension of the power of this Court to look into the testimony and supply matters of fact, material to his legal inference; — to have merely found the prominent facts, as he considered them. In the Court below, if the parties be so advised, the right of a trial by jury as to the issue of due diligence may be demanded, so as to present that question to this Court directly tor adjudication.
This will be certified.
Pee Curiam. Judgment reversed.