¶1delivered the opinion of the court.
¶2This action was trover, for certain slaves, and was submitted to the court without a jury. The testimony was conflicting, as well respecting the delivery of the negroes to the plaintiffs’ wives by their father, and other facts in the case, as in reference to the credibility of the material witness for the plaintiffs. A portion of it had relation to an unrecorded deed of the gift, alleged to have been made by the father to his said daughters, but taken back and destroyed by him before they were 'either married or of age. The bill of exceptions then shows that after the conclusion of the testimony, “the defendant prayed the opinion of the court, if there was sufficient testimony to prove a delivery, so as to dispense with the proof or acknowledgment and recording of the deed,” and if “by reason of'said deed the plaintiffs acquired any title to tbe slaves;” and that the court having “thereupon decided that there was not sufficient testimony to prove a delivery of said slaves to plaintiffs’ wives, and that they acquired no title to them under the deed, because it had not been proven, acknowledged and recorded within eight months after the date thereof, the plaintiffs suffered a non-suit, and by leave of the court moved to set it aside.” Assigning therefor the usual reasons.
¶3No exception having been taken to the opinion of the court at the time it was delivered, it is unnecessary to remark further upon the confusion which not unfrequently ensues from the virtual finding of a verdict (by the court) upon the law and the facts of the case combined, than to add thatj the more perspicuous, and hence the safe course is, for the court to declare, (as a court,) in the first place, what the law of the case is deemed to be, and secondly, (as a jury,) to find the issues of facts accordingly.
¶4This court can thereby,' at once perceive whether the error complained of should be reviewed in reference to the exposition of the law or the finding of the facts, and pass upon it the more strietjy or confidingly, accordingly. Previous decisions being full enough as well to illustrate the distinction alluded to, as to render apparent the advantage and necessity of having them properly presented upon the record, there need be added in this cause nothing beyond the affii manee of the judg-*585xnent below, on the ground, alone, that no such exception appears to have been taken to the opinion of that tribunal as to entitle it to be reviewed here.