Butler, J.
This is an action of replevin for two horses. The issue is made by .a plea in bar, which is substantially a denial of the plaintiff’s title. Whether or not the plaintiff had title, is the only question legitimately upon the record. Whether or not the horses were so the property of Edward Dudley tliat they could be attached and holden by his creditors, and all the facts in that connection, are immaterial except as they bear upon the one legitimate question, whether the plaintiff had title or not.
Edward Dudley at one time owned the horses, and, prior [173] to the attachment, there was a transaction between Edward Dudley and Everett Dudley respecting the horses, during which a bill of sale of them was executed to the plaintiff. But we think it very clear upon the facts found that no title was intended to be passed, and that none in fact passed to the plaintiff.
No agreement was made by the plaintiff with Edward Dudley, — no consideration passed from the plaintiff, — the bill of ■sale was never delivered to him, — the horses were not delivered to him, — and he had no knowledge of the transaction until after this suit was instituted, — nor does it appear that he ever claimed the horses, or that he claims them now.
It is obvious that no title could pass in such a transaction, from Edward Dudley to the plaintiff, unless Everett Dudley was the agent of the plaintiff, and had full authority to bind the plaintiff in the transaction. And that fact it is incumbent upon the plaintiff under such circumstances to show by clear evidence.
The facts found show no such agency. In respect to the stock of cattle originally placed upon the farm, and their increasé, perhaps an authority to exchange or supply may be inferred from the fact that the plaintiff furnished a stock of cattle originally; and the finding that the stock and its increase or substitution was considered by the plaintiff and Everett as the property of the plaintiff. But the facts found disclose no authority express or implied, to purchase and trade horses as the agent of the plaintiff. The term stock, as used in the finding, uniformly imports cattle and not horses, and such is its popular meaning when used in respect to a farm.
It is very clear then, not only that the finding does not show a previous authority from the plaintiff to Everett to purchase these horses on his account, or any subsequent ratification of the transaction; but it is expressly found that no authority was ever given by the plaintiff to Everett to trade or buy cattle, horses or other property as the agent of the plaintiff. It is therefore a'naked case where a party purchasing property procures the bill of sale to be taken in the [174] name of- a third person, without the previous or subsequent assent, authority or knowledge of such person, or any delivery of the bill of sale or property to him, actual or constructive. Under such.circumstances no titlejjasses to the person named in the bill of sale, and no action can be maintained in his name ; and the experiment made in this case must fail.
But if-this were not so we should feel constrained to dismiss the case without disturbing the judgment.
The question presented to us for decision is simply a question of fact, to wit, whether the facts found, or in other words the indisputable evidence, proved the primary fact in the case, to wit, whether the plaintiff had title or not. It is substantially a question whether the court found the main fact, correctly iri view of the evidence. And it is obvious that if such a practicé is authorized, and is to be continued, the findings on the main questions of fact determined by the superior court, upon which the particular case turned, may be reviewed before this court by motion in error or a motion for a new trial in all cases.
It was the intention of the framers of the constitution that the Supreme Court of Errors should be a court for the correction of errors in law. The language used clearly imports this, arid such lias ever been the understanding of the legislature, of the courts, and of the people of the state. When the court was constituted by the General Assembly under the constitution, immediately after its adoption, its jurisdiction was confined to “all matters brought by way of error or complaint from the judgments or decrees of any superior court, in matters of law or equity, wherein the rules of law or principles of equity appear from the files, records or exhibits of said court, to have been mistakenly or erroneously adjudged and determined.” This statute has remained unchanged and in force from that time to the present, and has been and is the fundamental authority upon which we act. Our duty then is to consider and determine matters wherein the rules of law or principles of equity have been mistakenly or erroneously adjudged and determined. All matters of fact then, if wrongfully determined, are excluded from our jurisdiction, [175] and such has been the construction put upon this statute by this court in numerous cases.
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Butler, J.
This is an action of replevin for two horses. The issue is made by .a plea in bar, which is substantially a denial of the plaintiff’s title. Whether or not the plaintiff had title, is the only question legitimately upon the record. Whether or not the horses were so the property of Edward Dudley tliat they could be attached and holden by his creditors, and all the facts in that connection, are immaterial except as they bear upon the one legitimate question, whether the plaintiff had title or not.
Edward Dudley at one time owned the horses, and, prior [173] to the attachment, there was a transaction between Edward Dudley and Everett Dudley respecting the horses, during which a bill of sale of them was executed to the plaintiff. But we think it very clear upon the facts found that no title was intended to be passed, and that none in fact passed to the plaintiff.
No agreement was made by the plaintiff with Edward Dudley, — no consideration passed from the plaintiff, — the bill of ■sale was never delivered to him, — the horses were not delivered to him, — and he had no knowledge of the transaction until after this suit was instituted, — nor does it appear that he ever claimed the horses, or that he claims them now.
It is obvious that no title could pass in such a transaction, from Edward Dudley to the plaintiff, unless Everett Dudley was the agent of the plaintiff, and had full authority to bind the plaintiff in the transaction. And that fact it is incumbent upon the plaintiff under such circumstances to show by clear evidence.
The facts found show no such agency. In respect to the stock of cattle originally placed upon the farm, and their increasé, perhaps an authority to exchange or supply may be inferred from the fact that the plaintiff furnished a stock of cattle originally; and the finding that the stock and its increase or substitution was considered by the plaintiff and Everett as the property of the plaintiff. But the facts found disclose no authority express or implied, to purchase and trade horses as the agent of the plaintiff. The term stock, as used in the finding, uniformly imports cattle and not horses, and such is its popular meaning when used in respect to a farm.
It is very clear then, not only that the finding does not show a previous authority from the plaintiff to Everett to purchase these horses on his account, or any subsequent ratification of the transaction; but it is expressly found that no authority was ever given by the plaintiff to Everett to trade or buy cattle, horses or other property as the agent of the plaintiff. It is therefore a'naked case where a party purchasing property procures the bill of sale to be taken in the [174] name of- a third person, without the previous or subsequent assent, authority or knowledge of such person, or any delivery of the bill of sale or property to him, actual or constructive. Under such.circumstances no titlejjasses to the person named in the bill of sale, and no action can be maintained in his name ; and the experiment made in this case must fail.
But if-this were not so we should feel constrained to dismiss the case without disturbing the judgment.
The question presented to us for decision is simply a question of fact, to wit, whether the facts found, or in other words the indisputable evidence, proved the primary fact in the case, to wit, whether the plaintiff had title or not. It is substantially a question whether the court found the main fact, correctly iri view of the evidence. And it is obvious that if such a practicé is authorized, and is to be continued, the findings on the main questions of fact determined by the superior court, upon which the particular case turned, may be reviewed before this court by motion in error or a motion for a new trial in all cases.
It was the intention of the framers of the constitution that the Supreme Court of Errors should be a court for the correction of errors in law. The language used clearly imports this, arid such lias ever been the understanding of the legislature, of the courts, and of the people of the state. When the court was constituted by the General Assembly under the constitution, immediately after its adoption, its jurisdiction was confined to “all matters brought by way of error or complaint from the judgments or decrees of any superior court, in matters of law or equity, wherein the rules of law or principles of equity appear from the files, records or exhibits of said court, to have been mistakenly or erroneously adjudged and determined.” This statute has remained unchanged and in force from that time to the present, and has been and is the fundamental authority upon which we act. Our duty then is to consider and determine matters wherein the rules of law or principles of equity have been mistakenly or erroneously adjudged and determined. All matters of fact then, if wrongfully determined, are excluded from our jurisdiction, [175] and such has been the construction put upon this statute by this court in numerous cases.
By an act passed in 1864 it was provided that “whenever an action at law shall be tried by the superior court without a jury, said court shall find, upon the motion of either party, the facts upon which the judgment is founded, and cause such finding to become a part of the record.” Did the legislature intend by that act that the evidence, if indisputable or found to be true, should be spread upon the record, so that upon motion for a new trial or on motion in error this court should review the determination of the superior court upon the question whether the evidence did or did not prove the main facts involved in the issue ? We think not, and that such a finding of facts, although a part of the record, cannot be legitimately used in any other manner than facts recited in a bill of exceptions or a motion for a new trial, — that is to say, for the purpose of presenting for the consideration of this court, and for its action, some question of law involved and decided. We adopt this view of the intention of the legislature, not only because any other view would be inconsistent with the provisions of the statute under which the court is constituted, the obvious intent of the constitution, and the uniform decisions of the court, but because any other view is opposed to all the analogies of our system. For, in the first place, provision exists in that system for a review of the action of the court where the judgment is against the weight of evidence ; and in the second place there is no analogous proceeding in our system. In chancery proceedings the statute requires the facts to be found by the court, and upon motion in error it is a legitimate question for this court whether or not the facts, upon principles of equity, entitle the party to the relief decreed or denied. But that furnishes no analogy for this proceeding, for in equity the petitioner is bound to spread his whole case, and all the facts upon which he relies to sustain it, upon the face of his bill, and he is confined upon the trial to the facts thus set forth, and the court is restrained to their consideration alone. The facts being necessarily set forth in the petition, the respondent may demur to them, and by so [176] doing suppose them to be true, and test the question whether they are sufficient to entitle him to relief if true, and the petitioner has an equivalent right, when the facts are found and spread upon the record, by a motion in error to review the question of their sufficiency upon principles of equity, if his petition is denied and his bill dismissed. But such proceedings in equity furnish no analogy for a proceeding like this. It is sometimes the practice for auditors to report the facts or the evidence which they find to be indisputably true, and to refer to the court some question of law, finding the issue contingently upon the determination of the question of law. It would be strange indeed if auditors could be ■ permitted to report the evidence in actions of law, and leave the principal facts to be determined by the court;
In view of these considerations we are of opinion that it was not the intention of the legislature, when they passed the act of 1864, that questions of fact should be presented for our consideration, or that we should take jurisdiction of them.. And it must be understood that cases involving questions of fact will not hereafter be considered. ■ •
A new trial is not advised.
In this opinion the other judges concurred, except Carpenter, J., who having tried the case in the court below did not sit. ' •