¶1(dissenting). I concur in the opinion of the court to the extent to which the dissenting opinion of Judge Baedwin agrees ; that is to say, that a new trial should be grant-*466eel for error in the ruling of the Court of Common Pleas with respect to the burden of proof, and that this error can be made to appear by our action in enlarging the finding of facts, by reference to the statements in the memorandum of decision.
¶2I also think that the terms of the Act of 1893 do not require this court to determine, upon evidence spread upon the record, questions of pure fact settled by the trial court, not connected with questions of law, as to the decision of which error is assigned.
¶3I concur with Judge Baldwin to the extent that it was not necessary, in order to justify the decision of the case by this court, or the construction of the statute arrived at, that the inquiry and determination, in the opinion of the court, as to the constitutional limits of the jurisdiction of the Supreme Court of Errors, should have been made. I think, therefore, this part of the opinion is “but an obiter dictum” which I regret that the court should have felt called upon to express, and in which for the reason stated, I feel justified in declining to participate. I desire to be understood as intimating no view whatever upon the subject, as one not properly before us ; the decision readied resting, soundly, I think, on other grounds ; which being the case I prefer not to abridge my full liberty for judicial action upon the question, if “some future statute should present it.”