¶1In England I understand the practice in chancery to be, that the court examines the testimony taken in the cause, and if doubtful refers it to a jury, on an issue, to ascertain its truth, but if the evidence is satisfactory to the court, no reference is made to a jury. Where the answer is read, the rule of law is, that as to such parts of the answer as are responsive to the bill, there must be two witnesses to do away its effect; or at least one witness aided by circumstances.
¶2Our practice differs from this in some respects. Issues are made up by agreement of the parties, or by a judge of this court on application of either party before the cause is opened, or heard at all. It is most usual to do it at the rules, immediately after the replication is filed. The answer has been read, and as there are circumstances, beside the testimony of one witness, the jury will give them such credit as they may think they deserve.
¶3Concurred with the opinion delivered so far as it went. The defendant Ward, in his answer says, that part of the consideration for the note was a previous misrepresentation by Lancaster in selling lands which proved to be of inferior quality.—The jury cannot take this into consideration; because it neither relates to the issues to be tried by them; nor is it known at this time to be material in any other point of view, there being no statement in the answer, that Lancaster was liable *434on his contract for any deficiency in the quality of the land, previously sold. Many of the arguments used by the counsel, more properly apply to the merits of the cause, than the trial of these issues; and therefore need not be taken into consideration at all by the jury.