#### FOUSHEE and THOMPSON vs. PATTERSHALL.

1. A Judge of the Superior Court, in passing upon a mixed question of law and facrr should, as required by O. O. P., secs. 241, 242, state the facts found and the conclusions of law separately.

2. The jurisdiction given to the Supreme Court by the Constitution is appellate, upon any matter of law or legal, inference. No issue of fact shall be trh d before it. The phrase “ issues of fact,” is a technical one and must be understood in its legal, technical sense, as including only such issues as are joined in the pleadings, and does not forbid the Court from deciding questions of fact which arise incidentally upon motions; at least, not in cases where the decision, though final for the purposes of the motion, does not conclude fie rights ot the parties, as, on motion, to grant or vacate injunctions.

Rodman Judge, arguendo.

The questions of fact which incidentally arise, upon exceptions to an account, differ a little in their nature ircm those upon a motion to grant or vacate an injunction, as the decision upon them is necessarily final for the purposes of the action. But we think this Court has never decided, that it was prohibited from reviewing the finding of a Judge of the Superior Court in such a case. We should be reluctant so to decide, as it is difficult to conceive that the law of North Carolina ever intended to confer, en a single Judge, the vast and dangerous power of deciding all questions of,/act so arising, without responsibility, and without liability to review or correction, even in cases of plain and evident mistake.

[Ileilig v. Stokes, 68 N. C. 612; Clegg v. New Torh White Soaptone Company, 66 N. C. 391, cited and approved.]

Civil. Action, tried before Tourgee. J., at Spring Term, 1872, of Chatham Superior Court.

The action was brought by plaintiffs, administrators of John A. Johnson, against the defendant as administrator of B. Pattersliall, to recover the sum of $225 and interest from lfitb February, 1857, covenanted to be paid by the intestate of the defendant. Defendantpleaded, amongother things, retainer and no assets. By order of the court, there was a reference to the clerk, “ to take and state an account of the defendant as admin*454istrator, &c.” A report was made, and exceptions filed. At Spring Term, 1872, his Honor rendered judgment as follows : “This cause being brought on before his Honor, A. "W. Tour-gee, Judge, &c.,.npon the report of the commissioner and exceptions, which exceptions are in the following words: That he is not charged with the amount of the note oí ¡¡>700, subject to a credit, &c., and the proceeds of which should have been assets, &c.; that he is not charged with a note of $433, principal, signed, &e. That said exceptions be in all things sustained.” There was no further finding of facts, and the judgment rendered is given as above. The defendant excepted to the said ruling and decision of the court, and appealed to the Supreme Court.

Manning, for the plaintiffs.

J. II. Ileaden, for defendant.

Rodman, J.

The plaintiff sought to charge the defendant with two notes, which he alleged belonged to the estate of his intestate, and which defendant had failed to collect and lost through negligence. It was referred to a referee to report upon the facts relating to the notes ; he reported that they did not belong to the estate of the intestate, and that the defendant had not been negligent in respect thereto. The. plaintiff excepted to the report, and his Honor sustained the exceptions, thereby holding that the defendant is chargeable. Rut his Honor finds no facts, and therefore does not separate his con elusions of law from the facts found, as he is required to do by O. O. P., secs. 241-’2.

The jurisdiction which is given to this Court by the Coustition is appellate, upon any matter of law or legal inference. It says, that no issues of fact shall be'tricd before it. Art. IT, sec. 10. In Heilig v. Stokes, 63 N. C., 612, this Corirt held that the phrase “ issues of fact,” was a technical one, and must he understood in its legal, technical sense, as including only *455such issues as were joined on the pleadings, and did not forbid the Court to decide questions of fact which arose incidentally upon motions ; at least, not in cases where the decision, though final for the purposes of the motion, did not conclude the rights of the parties, as on motions to grant or vacate injunctions. The questions of fact, which incidentally arise upon exceptions to an account, differ a little in their nature from those upon a motion to grant or vacate an injunction, as the decision upon them is necessarily final for the purposes of the action. But we think that this Court has never decided that it was prohibited from reviewing the finding of a Judge of a Superior Court in such a case. We should be very reluctant so to decide, as it is difficult to conceive that the Jaw of North Carolina ever intended to confer on a single Judge the vast and dangerous power of deciding all questions of fact so arising, without responsibility, and without liability to review or correction, even in cases of plain and evident mistake. No question as to the power of the Court in this respect occurs in this case, and these observations are only made here, to show that the point is at least an open one.

This Court, however, has several times said that it WGuldnot try any such question of fact, except it had been found in one or another way by the Judge below; and upon appeal. Clegg vs. N. Y. White Soapstone Co., 66 N. C., 391. The reason is obvious; the jurisdiction of this Court is appellate, and can be exercised only after a finding below.

This Court has a plain and undoubted. power to review the decision of a Judge of a Superior Court, on any matter of law or legal inference. But this power cannot be exercised unless the facts found, and the conclusions of law thereon are separately stated. It is impossible to review a mixed conclusion of fact and law ; because, whether the law is right or wrong, depends entirely on the facts to which it is applied.

Nor, as was said in Clegg v. N. Y. Soapstone Co., is it allowable to .assume that the Judge found such facts as would sup*456port his conclusion oí law; for in that case the Judge would always be right.

The judgment below is reversed, and the case remanded, in order that his Honor may state separately the iacts relating to the subject of the exceptions, and his conclusions oí law thereon, and that the case may be further proceeded in according to law.

The defendant will recover costs in this Court.

Let this opinion be certified.

Pee Cueiam. Judgment reversed.