
    William P. Young v. Aaron L. Schenck.
    Where a case, originating in the common pleas, comes into this court by reservation in the district court, and it is not made to appear, by transcript or otherwise, what judgment was rendered in the common pleas, and how the case was removed to the district court,, whether by appeal or writ of error, the case will be remanded.
    It is not competent for the district court to send a case to the Supreme Court for the determination of legal questions, in advance, and before the decision of them shall have become necessary, and been regularly presented for the decision of the case.
    Where, in a case in the district court depending on an issue of facts, the parties even waive the intervention of a jury, and submit the issue to the determination of the district court, the cause is not in a condition for a reservation on the motion of one of the parties, and to be sent here for the determination of the issue of fact.
    ^Reserved in the district court of Butler county.
    This is a special action on the case, instituted in the court of common pleas of Butler county, in 1852, for an alleged omission, by the defendant, as sheriff of Butler county, to take a sufficient bond, on the discharge of a canal-boat seized under the water-craft law of this state at the suit of said plaintiff in said court. The •declaration charges the defendant with liability on account of such nonfeasance in office. The defendant plead the general issue and the statute of limitations; and an issue of fact was made. But Row this issue was disposed of, and what judgment was rendered in the common pleas, and how the cause came to be removed into the district court, whether by appeal or writ of error, is not shown to us — no transcript from the common pleas appearing in the case. And the only proceeding in the case, appearing to have been taken in the district court, is the reservation of the case, the certificate of which shows, that at the May term of that court, for 1854, “the cause being submitted to the court, together with the evidence in writing on file,” the court, in view of important questions arising in the case, on motion of defendant’s counsel, reserved the case fpr decision by the Supreme Court.
    
      James Clark, for plaintiff.
    
      Thomas Millikin, for defendant.
   Bartley, C. J.

This cause is not in a situation to admit of its-determination by this court. What judgment, if any, was rendered in the common pleas, and whether the cause reached the district court by appeal, or by writ of error, is not made to appear in the case. And if this difficulty could be removed by supplying a tran 112] script from the ^records of the common pleas, it could not help-the case here. For the first thing we meet in the case is an issue of fact, which the parties have a right to have tried by a jury. It does not appear that the intervention of a jury was waived by the parties. And if the parties had actually waived a jury, and submitted the cause to the district court, that court could not, by any reservation of the case, on motion of one of the parties, have transferred the trial of the issue of fact to this court, and thus substituted this court for the district court, which the parties had agreed to substitute for a jury. Hubble v. Renich, 1 Ohio St. 176. It. maybe, that the testimony in the case is all in writing, and on file, consisting of depositions and an agreed statement of .facts; and, also, that the trial of the case may involve important legal questions; yet the issue of fact should have been submitted to a jury, or passed on by the district court. If the legal questions had been raised on a motion for a new trial, or by demurrer, or on some motion antecedent to the trial of the issue of fact, the case might have been in a condition to have been brought into this court. But as it is (being a reservation on motion of one of the parties only), if even the intervention of a jury had been waived, and the cause, by consent of the parties, submitted to the district court, it does not appear that the parties consented to submit the finding on the issue of fact to this court, conceding it to be competent for this court to determine issues falling within the peculiar- province of a jury.

Gause remanded to the district court.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred.  