majority"> Merrimon, C. J.:

The answer does not purport to allege a counter-claim, nor does it allege facts informally sufficient to constitute one. It simply alleges that the plaintiff and defendant were partners in trade and as such owners of the corn, the subject of controversy, as matter of defence. Such allegation “ is to be deemed controverted by the adverse party as upon a direct denial-or avoidance,” unless the Court shall require a reply to such new matter. The statute (The Code, §§ 248 and 268) so provides. Price v. Eccles, 73 N. C., 162; Fitzgerald v. Shelton, 95 N. C., 519; Stanton v. Hughes, 97 N. C., 318. The Court, therefore, properly denied the motion of the defendant for judgment upon the complaint and answer.

We are, however, of opinion that the Court erred in directing the jury, upon all the evidence, to respond in the affirmative to the second and third issues. The defendant did not admit that he executed the paper-writing under which the plaintiff claims the corn; indeed, he testified to a state of facts wholly inconsistent with it, and its several provisions. His testimony was, in all material respects, in conflict with that of the plaintiff. He testified that he never delivered the corn to him, and that the latter never made demand upon him for the same. The plaintiff testified directly the reverse.

The unregistered mortgage, as between the plaintiff and defendant, had the effect, so far as appears, to put the title to the corn in question, embraced by it, in the plaintiff. The Court might have told the jury that if they believed the evidence of the subscribing witness, the defendant executed the *267 paper-writing mentioned, and in that case they should respond to the second and third issues in the affirmative. It was the province of the jury to pass upon the weight of the evidence, as the learned Judge very well knew. No doubt he omitted to instruct them in substance as above indicated, by inadvertence; he may have done so, and omitted to so state in the case settled on appeal. It does not, however, appear that he gave that instruction, and hence, it must be taken that he did not.

The judgment must be set aside, and a new trial awarded.

Error.

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