delivered the opinion of the court. He recited the facts as above stated, and continued:

If, after the plaintiff’s case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all inferences that the jury could justifiably draw from- it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, and cases there cited. And, in that event, the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ, of error, would have been entitled to the judgment of this court, whether, as a matter of law, the ruling against him was erroneous.

Or, if in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, 'it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and afterwards rendered judgment upon its conclusions of law. But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect *321 of the evidence, finds the facts involved in the issue, and renders judgment thereon.

This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as was rendered. That is a question not before us. The plaintiff in error complains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it, by the act of the court, in entering a judgment against him on its own view of the evidence, without the intervention of a jury.

In this particular, we think error has been well assigned.

The right of trial by jury in the courts of the United States .is expressly secured by the Seventh Article of Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Rev. Stat. §§ 648, 649.

This constitutional right this court has always guarded with jealousy. Elmore v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, 1 Pet. 476; Castle v. Bullard, 23 How. 172; Hodges v. Easton, 106 U. S. 408.

Por error in this particular, the

Judgment is reversed, and the cause is remanded, with di/reotions to grant a new trial.