The opinion
Avbky, J.:
Commenting upon the assignment as error of the ruling of a trial judge refusing to grant a continuance, the Court said, in
Johnson
v.
Maxwell,
87 N. C., 20 , “ we refer to this exception, not pressed here as a reviewable error, only to say that in the flight of repeated decisions, and with the ■ law well settled, we are unable to understand why it should
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be the subject-matter of appeal.” The ancient mode of trial by jury, which is declared sacred (Const., Art. I, § 19), is that which comes to us as an inheritance from the mother country. The Constitution confers the right to demand the intervention of a jury, not absolutely and unqualifiedly in all controversies arising in the Courts, but only in cases involving issues of fact.
Railroad
v. Davis, 2 Dev. &. Bat., 465. It is the office of the Legislature to provide for securing- the benefit of this constitutional guarantee by declaring how such issues shall be raised. This duty has been performed by prescribing certain rules governing practice and pleading.
Armfield
v.
Brown,
70 N. C., 27 ;
The Code,
§ 391. The province of the jury is restricted to passing upon issues of fact raided by the pleadings in the light of the testimony offered. When no testimony is offered, it is the duty of the trial judge to determine the issues of law, if any are raised, and then to proceed to enter such judgment as either of the parties may have the right to demand upon the admissions of fact contained in the pleadings and the determination of the controverted questions of law.
Armfield
v.
Brown, supra.
The defendant admitted the allegation of the complaint that the plaintiff deposited the sum mentioned in her own name, and drew subsequently $2,088.16, leaving a balance of $3,387.62, the payment of which was refused when the check was presented on the 24th of December, 1889. Nothing more appearing, the plaintiff was entitled to recover, upon the admissions, the balance of the deposit, which she demanded, since such admissions were equivalent to a finding of a jury.
Bonham
v.
Craig,
80 N. C., 224 ;
Stephenson
v.
Felton,
106 N. C., 114 ;
Harris
v.
Sneeden,
104 N. C., 369 ;
Oates
v.
Gray,
66 N. C., 442 . The new matter set up in the answer, and relied upon by the defendant, if admitted to constitute a valid defence, was deemed in law to have been denied.
The Code,
§ 268;
Fitzgerald
v.
Shelton,
95 N. C., 519 ;
Price
v.
Eccles,
73 N. C., 162 . The onus being upon the defendant, as an actor, to show that
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the plaintiff authorized the application of the money deposited to the payment of the debt of her deceased husband, when be failed to offer any testimony to establish his defence, the case stood upon the complaints and admissions, just as though the new matter had never been pleaded, and it was not error in the Judge, therefore, to direct the jury to return a verdict for the unpaid balance of the money deposited, with interest from date of demand and refusal.
Wallace
v.
Robeson,
100 N. C., 207 ;
Fortescue
v.
Makeley,
92 N. C., 56 ;
Rogers
v.
Moore,
86 N. C., 85 .
The defence being in the nature of a plea by way of confession and avoidance, on failure to offer testimony the confession, as far as it went, was. equivalent to the verdict of a jury, while the matter in avoidance, in the absence of proof offered to sustain it, could no more be considered than if it had never had been pleaded. There was
No Error.