¶1delivered the opinion of the court.
¶2This was a civil action under the new code of practice to recover slaves. The trial was submitted to the court, and the court found a general verdict for the defendant, without finding the facts as required by the 2nd section of the 15th article of the code. This section requires the decision of the court tobe in writing, and that the facts shall be first stated, and then the conclusion of law upon the facts. The third section provides a mode for having a review in the circuit court of either a question of law or fact, and requires that, for that purpose, a case shall be made, containing so much of the evidence as may be material to the questions to be raised. When the court finds the facts, it is only by this proceeding, in making a case, that the evidence relating to the question of fact, or material' to the question of law, is preserved.
¶3Instructions were asked in the present case; but that practice is evidently inappropriate and useless, when it is the duty of the court to find the facts, and pronounce the law upon the facts found. If the facts found do not warrant the conclusion of law, the judgment is erroneous. But this conclusion of law, to be stated in ' the decision of the court, is distinct from the judgment, for the act directs that after the decision is made containing the facts and the conclusion of law, “judgment upon the decision shall be entered accordingly.”
¶4There is a great difficulty in determining the proper course to be adopted in a ease like the present. Although there was a motion for a new trial, and a motion in arrest of judgment, there appears to have been no question made upon the failure of the court to make a decision *403in conformity to the code. In fact, the whole proceeding has been conducted as if there had been no change whatever in the practice.
¶5This courtis directed by the 17th sectionof the 19th article, not to reverse a judgment unless it shall believe that error was committed by the circuit court against the appellant, materially affecting the merits of the case. To reverse the judgment for the reason that the record does not contain the decision of the court upon the facts and law, would be to reverse it because the merits do not properly appear upon the record, and because a form was not adopted which neither the parties nor the court appear to have thought of.
¶6Upon the whole, it is probably the safer rule to say that the judgment shall be presumed to be correct, until error is shown in the mode prescribed by law; and therefore the judgment is affirmed.