Where there has been fraud and surprise, or subsequent discovery of evidence. plaintiff was jointly bound with his son, in the penalty of £100, that the son should not commit any trespass in the Duke of Beaufort's royalty, by shooting, hunting, fishing, &c., except with the license of the gamekeeper, or in the company of some qualified person. The son having catched two flounders with an angling rod, the bond was put in suit, and judgment for the penalty. It appeared that the gamekeeper's brother-in-law, and another ser. vant of the duke, had asked the plaintiff's son to angle with them, when he catched the two flounders, and the verdict was found merely on their evidence. Lord Hardwicke decreed the plaintiff should be relieved against the verdict, and that the duke should refund the £100 recovered on the bond, and the £10 damages, upon the ground of a fraud practiced upon the son to work a forfeiture of the boud.

And similar relief has been granted in a case of great value, and settling an important principle, as in Edwin v. Thomas.(1) The issue directed to be tried touching the custom of the manor of, was found against the plaintiff, Edwin; and the cause being now set down upon the equity reserved, it being alleged to be a cause of value, and concerning all the copy holds in the manor, a new trial was directed upon payment of costs.

So, where the inheritance is to be absolutely bound [*576] on a *question of heirship, as in Buker v. Hurt.(2) The cause was heard before the Lord Chancellor, and issues were then directed; it came on now upon the equity reserved, and upon an application for a new trial. Lord Chancellor.-" Upon the second issue before Lord Chief Justice Willes, the jury found that William Baker, the father of the plaintiff, was not the heir of Admiral Hosier. But it has been certified to me by the chief justice, that the finding of the jury depended upon the verdict given on the first issue. The application now is, not to set aside the verdict, but for another trial. Where it is a matter of in

(1) 2 Vern. 75.

Where there has been fraud and surprise, or subsequent discovery of evidence. heritance, the court, without setting aside the first verdict, for the more solemn determination, in some cases, direct a second trial; and if the court direct such trial without setting aside the former verdict, then the first may be given in evidence, and will have its weight with the jury. In many cases where it is a matter of inheritance, and not actually conclusive, the court have not directed a new trial: but where the inheritance will be absolutely bound, the court has granted a new trial. In the present case, it is insisted the inheritance will be bound, and said in answer to that, the plaintiff may try it over again in ejectment. If so, where is the prejudice to the defendant, if the court should direct it to be tried again ?"(1) And new trial ordered.

In Stace v. Mabbot, (2) where a new trial was granted on the ground of importance and of newly discovered evidence, the principles, in general, on which courts of equity will interfere, especially in cases where fraud would otherwise triumph with impunity, were fully stated, and the distinction between the acts regulating applications of this *kind at law and in [*577] equity definitely ascertained. A motion was made for

a new trial. The question was as to the forgery of a certain paper, relative to the estate of Captain Girlington. Against this, it was said Justice Foster, who tried the issues, had certified that he was satisfied with the verdict, and two cases were cited and relied on, in which courts of law had refused a similar motion. The Lord Chancellor, after a brief notice of the rules governing applications for new trials at law, proceeds: "But this court directs issues to be tried at law, to inform the conscience of the court as to facts doubtful before, and therefore expects in return such a verdict, and on such a case, as shall satisfy the conscience of the court to found a decree upon. If, therefore, upon any material and weighty reason, the verdict is not such as to satisfy the court to found a decree upon, there are several cases in which this court has directed a new trial for further satisfaction, notwithstanding it

(1) Vide Earl of Darlington v. Bowes, 1 Eden, 270; Baker v. Hart, 1 Ves, sen. 28. (2) 2 Ves. sen. 552.

Where there has been fraud and surprise, or subsequent discovery of evidence. would not be granted if in a court of common law, because it is diverso intuitu, and because the court proceeds on different grounds. This is known to be the ordinary rule of this court, where a matter of inheritance is in question, for the court says an inheritance is not to be bound by one verdict, if any sort of objection arises to the trial; and that notwithstanding the objection of inconvenience in examining over and over, which objection has not prevailed. This extends also to a personal demand, where of considerable value, and where the court is not satisfied with the grounds on which the determination was made at law, and when an objection is made and supported by proof; and particularly in a case of forgery new trials have been granted, and that by judges who sat here, who have been as reluctant as any, and who inclined to adhere to the rules of common law. I remember a case in Lord King's time, relating to a rent charge. It had been twice or thrice tried at common law, tried upon distress taken on

the rent charge and an avowry, and where the question [*578] was singly, *whether it was a forgery or not; and upon

all those trials, verdict was found for the deed. A bill was notwithstanding brought here to set it aside for forgery; and Lord King sent it to trial under an issue directed by the court; and I believe there was a new trial after that; and notwithstanding all those verdicts, Lord King made a decree to have it brought into court and cancelled here, the former trials not being to the satisfaction of the court."(1)

A strong example of the interference of the court, in setting aside verdicts and judgments obtained by fraud, is presented in Reigal v. Wood, (2) where an attorney revived, by scire fucias, an old outstanding judgment, on which but a very small sum, if anything, was due; and knowing that the land on which the judgment re mained a lien, was in the possession of innocent and bona fide purchasers; and afterwards made use of the judgment to compel the purchasers, who were ignorant of the proceedings under the

(1) Vide Edwin v, Thomas, 2 Vern. 75; Wardens of St. Paul v. Morris, 9 Ves. 155; Vaignear v. Kirke, 2 Dessaus. Chan. Rep. 643, in notis.

In feigned issue where the verdict is satisfactory.

scire facias, to pay and secure to him a debt he claimed against the person under whom they had purchased. The Chancellor."It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias as unduly obtained; and that the defendant cannot, in justice and good conscience, be permitted to hold any advantage which he may have obtained under it. It is a well settled principle in this court, that relief is to be obtained, not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition." After a review of the case, the Chancellor, having satisfied himself that the weight of evidence was that the whole of the original judgment, costs as well as debt, had long *before been satisfied, concludes "I am of opinion, [*579] therefore, that Wood cannot be permitted to acquire and hold any advantage whatever, under the judgment obtained upon the scire facias, and that the whole proceeding was an imposition upon the plaintiffs. I shall accordingly decree that the bonds and mortgages mentioned in the pleadings be given up and cancelled, and that the money which has been paid upon one of the bonds and mortgages be refunded, with interest, and that the defendant, Wood, pay the costs of this suit."(1)

IV. In feigned issue where the verdict is satisfactory.

The object of issues, directed out of Chancery, being to inform the conscience of the court if the verdict of the jury prove satisfactory, although the rules of strict law, in the admission or rejection of evidence, or directions to the jury, may not have been complied with, a new trial will be refused.(2)

We have seen in Stace v. Mabbot, (3) and in Richards v. Symes, (4) that the court proceeds to dispose of applications of

(1) Vide Barnsley v. Powel, 1 Ves. sen. 120; Richmond v. Tayleur, 1 P. Wms. 734. (2) 2 Tidd, 920; Gra. Prac. 415.

(3) 2 Ves. sen. 552; Supra, p. 576.

(4) 2 Atk. 319; Supra, p. 189.

In feigned issue where the verdict is satisfactory.

this kind by a practice peculiar to equity. The controlling principle is, to satisfy the conscience of the court. In Bootle v. Blundell,(1) a bill was filed by devisees, praying that the will of Henry Blundell might be established against the heir at law. An issue, devisavit vel non, was directed. At the trial, the counsel for the plaintiffs examined one Blanchard, to prove the will and codicil, declining to call the other two subscribing witnesses; and after the examination of the surgeon and the physician,

whose evidence was strong as to the general capacity, [*580] with temporary stupor, the consequence of an attack *of jaundice, the counsel for the defendant, who was present, with his consent, gave up the cause. The defendant moved for a new trial, complaining of the manner in which this issue, directed for the satisfaction of the court, was tried, without examining all the attesting witnesses. For the plaintiffs, it was contended that the rule requiring the examination of all witnesses, was confined to the Court of Equity, and could not be applied to a trial at law, either by an ejectment or in an issue. The Lord Chancellor." The rule of this court requiring that, to establish a will of real estate, all the three witnesses shall be ex amined, is not, by any means, as it has been represented, a mere technical rule. If this court thinks proper to consider the case upon the record as fit to be governed by the result of a trial, the review or propriety of which belongs to a court of law, the opinion of a court of law is sought in such a form, that it is regarded as conclusive, whether the judgment is obtained upon a verdict, or in any other shape; but, upon an issue directed, this court reserves to itself the review of all that passes at law; and one principle on which the motion for a new trial is made here, and not to the court of law, is, that this court regards the judge's report with a view to determine whether the information collected before the jury, together with that which appears upon the record in this court, is sufficient to enable it to proceed satisfactorily."

It appeared in this case, that there was much misapprehension

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