Cope, J. concurring.

The only question which we deem important to consider upon the appeal, relates to the sufficiency of the findings. The case was tried by the Court without a jury, and its decision was as follows :

The question is, whether this finding is a compliance with the statute.

The Constitution of the State declares, that “ the right of trial by jury shall be secured to all, and remain inviolate forever ; but a jury trial may be waived by the parties in all civil cases, in the manner prescribed by law.” (Art. I, sec. 3.) The one hundred and seventy-ninth section of the Practice Act prescribes the manner in which a jury may be waived in civil cases. And the one hundred and eightieth section of the same act provides, that upon the trial of an issue of fact by the Court, its decision shall be given in writing ; and that " in giving the decision, the facts found and the conclusions of law shall be separately stated.” The Court, upon such trial, besides performing its peculiar and appropriate duty of deciding the law, also discharges the functions of a jury, and passes upon the facts. So far as it acts as a jury, it is subject to the same rules and is entitled to the same privileges, with the exception of the mode of rendering its decision. It must in all cases find the facts—in other words, its verdict must in all cases be special. It *105 has not the discretion in this particular which is allowed in some actions to juries. (Sec. 175 of the Prac. Act as amended in 1854.)

The test, then, of the sufficiency of the findings of fact of" a Court is this : Would they answer, if presented by a jury in the form of a special verdict ? “A special verdict,” says the statute, “ shall present the conclusions of fact as established by the evidence, and not the evidence to prove them ; and those conclusions of fact shall be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Prac. Act, sec. 174.) A special verdict must, therefore, find the facts expressly and specially, and not generally or impliedly. It must present the facts so distinctly as to refer the Court clearly to the questions of law arising upon them. (Hill v. Covell, 1 Comst. 522.)' Has this been done in the case at bar ? The complaint, after stating that the defendants were engaged as copartners in the transportation of the United States Mail between the town of San Diego, in the State of California, and the town of San Antonio, in the State of Texas, and were proprietors of the mail line, alleges in the first count an indebtedness to the plaintiff for “ money lent by plaintiff to defendants ; for money paid, laid out and expended by plaintiff to and for the use of defendants, and to and for the use of their said mail line ; and for work and labor done and performed by plaintiff for defendants, and for work and labor done and performed by plaintiff for and on account of their said mail line; ” and in the second count alleges an indebtedness upon an account stated. How, to which set of allegations in this complaint may the designation of material in the findings be deemed applicable ? Is it to the allegations of “ money' lent,” or to money “ paid, laid out and expended ” for the defendants or their mail line ; or is it to the allegations of “ work and labor done and performed ” for them or their line ; or is it to the allegations upon the account stated ? It is impossible to state from the finding. Something more remains for the Court than merely to draw from the facts as they are presented conclusions of law. A preliminary examination is necessary to determine what allegations are material; and as several different allegations may be thus regarded, it is impossible to state to which the finding refers.

The case of McEwen v. Johnson ( 7 Cal. 258 ) is cited as an *106 authority in support of the finding in the present case. But that case is clearly distinguishable from the one at bar. There the finding embraced all the allegations of the complaint and answer, and was not restricted to such as were deemed material; and the Court, after referring to the provisions of the Practice Act, said, that under them “ the finding may well refer to the pleadings for a specification of the facts found and not found; provided such reference is sufficiently distinct to make it intelligible, and the facts are sufficiently stated in the pleadings; ” adding that in that case there was a very clear and simple statement of the facts in both the complaint and answer. There is no doubt that reference may be had to the pleadings in the finding. As, for instance, it would be sufficient to find that the promissory note, mortgage, or other instrument set forth in the complaint, was executed by the parties, and at the time as therein alleged; and so with other matters alleged which are established by the evidence. But in all such cases the reference should be distinct and pointed, so as to leave no doubt as to what particular facts are intended. There is no such reference in the present case, and the finding cannot, therefore, stand.

It is proper, however, to state that defective findings, or the absence of any findings, do not render a judgment, as contended by counsel, a nullity. They only constitute grounds for reversal on appeal. For such defect or absence the judgment could not be collaterally attacked.

Judgment reversed and cause remanded for a new trial.