The opinion of the Court was drawn up by
Weston C. J.Special pleading having been abolished by law, it becomes the duty of courts of justice so to mould their proceedings, under the substitute provided, a brief statement, that it may supply its place. And there can bo no difficulty in effecting this object. The points in a brief statement are equivalent to one or more special pleas in bar, under leave to plead double. The final judgment depends upon what the law, as applied to the case may require, after the facts in controversy shall have been settled. And this is in accordance with the old system, where upon different sets of pleadings, some issues might be found for the plaintiff, and some for the defendant. The mode of trial, preliminary to final judgment, depended upon the issue, which was referred to the decision of the Court, or of a jury, according to the nature of the question presented.
Upon double pleading, a resort might become necessary to both these modes of determining the questions raised in the same case. Carrying cut this analogy, which the plea of the general issue with a brief statement plainly requires, if the general issue, as in this case, is to be determined by an inspection of the record, the facts set up in defence in the brief statement can be settled only by the jury, to whom they must be referred. Being directly controverted in the counter statement, no other formal joining of the issue can be legally required. A trial must be had before the jury, who will determine the facts, and it will be for the Court then to decide, whether the action has or has not been sustained, and for which party judgment ought by law to be rendered.