In feigned issue where the verdict is satisfactory.

The principles contained in these rules and illustrated by the English authorities, as to issues out of equity, are embodied and illustrated in two recent cases in equity in this state. The first before the Chancellor.

Apthorp v. Comstock.(1) A question arose upon the genuineness of a deed on which the Chancellor directed several issues, all going to establish the single fact. The jury having found a verdict for the complainants on each of the issues, the cause was again heard, on a motion for a new trial, and upon the equity reserved. After a brief review of the cases, the Chancellor proceeds: "It may be proper to observe, that the principles upon which this court directs a new trial of a feigned issue, are somewhat different from those which govern courts of law in granting new trials. Where this court directs an action, although accompanied by particular directions, the parties, in other respects, are

left to their legal rights. The application for a new [*587] trial is, in that case, to be made to the court in which *the action is brought, and is subject to the rules which govern the proceedings of that court in other cases. But if an issue is directed, it is to inform the conscience of the Chancellor, and the application for a new trial must be made here. In the latter case, the court will not grant a new trial merely on the ground that the judge received improper testimony on the trial of the issue, or that he rejected that which was proper, if, on the whole facts and circumstances, the Chancellor is satisfied the re sult ought not to have been different, if such testimony had been rejected in the one case or received in the other. The first objection on the part of the defendants is, that the judge received evidence of the acts and declarations of persons not parties to the suit, and who where not acting as agents for the defendants. There is sufficient testimony, however, to which no legal objec tion exists, to satisfy me that an intelligent jury must always come to the same result, upon the main point on which the equit

(1) 2 Paige, 482; et vide 1 Hopkins, 143; 8 Cowen, 386.

In feigned issue where the verdict is satisfactory.

able rights of these complainants rest. On that point, the conscience of the court is satisfied."(1)

The case of Mulock v. Mulock,(2) came before the Vice-Chancellor of the first circuit. A feigned issue had been directed to try the question of adultery, and the jury had rendered a verdict of guilty against the defendant, upon which he applied for a new trial. The Vice Chancellor.-"The bill, in this case, is filed by the wife against the husband, for a divorce, dissolving the marriage contract on the ground of adultery. A feigned issue has been tried. The jury have found for the plaintiff, and the proceedings are returned to this court, with a certificate of the presiding judge, that the verdict was fully supported by the evidence, and was satisfactory to him. A motion, [*588] however, is made for a new trial. It is applied for on two grounds: 1st, Because the verdict is not warranted by the evidence; or, in other words, that there is no evidence of any adultery committed by the husband; and 2d, That the judge admitted improper testimony to go to the jury. In the first place, it may be observed, that it is not necessary to prove directly the fact of adultery. If it were so, there are but few cases in which the charge of it could be substantiated. On looking into the case before me, I do not discover any direct evidence of the fact. Still, after a careful examination of the circumstances, as proved to the jury, and which need not be here repeated, (independent of, and entirely aside from what is deemed by the defendant's counsel as objectionable testimony,) I cannot perceive how the jury could avoid the conclusion they came to, nor how any reasonable man can doubt the existence of the fact charged against the defendant. But it is said improper testimony was admitted; and, therefore, the verdict should be set aside. The evidence alluded to consisted of acts of cruelty, or personal violence of the husband towards the wife. It was offered, as stated in the case, with a view to show an alienation of affection on the part of the defend

(1) Vide ex parte Kensington, Coopers' Chan. Cas. 96; Head v. Head, 1 Sim. & Stu. 150; Stace v. Mabbot, 2 Ves. sen. 552; Collins v. Hare, Supra, p. 583. (2) 1 Edwards, 14.

Where the verdict on the feigned issue is unsatisfactory.

ant towards his wife, from the period of his first acquaintance with the object of his adulterous connection, and to prove that the banishment of the wife from her home was the result of a plan to introduce the other into his house, the better to continue his illicit intercourse with her. Under this view of the case, I am of opinion the judge was substantially right in the decision he made respecting the admission of such testimony. But, be that as it may, from the view which I have taken of this case, and from the well settled principles of equity in relation to the granting of new trials on feigned issues, I do not feel myself warranted in disturbing the present verdict. It is well understood that the rules

which formerly governed courts of law in granting new [*589] *trials, upon the grounds of testimony improperly admitted or rejected, have not been adopted by the Court of Chancery. The object of a feigned issue is to satisfy the mind of the equity judge upon matters of fact; and the object is attained, when the conscience of the judge is satisfied that, at the trial, justice has been substantially done." A new trial was refused.(1)

V. Where the verdict on the feigned issue is unsatisfactory.

If the verdict on the feigned issue be decidedly unsatisfactory to the judge who tried the cause, or to the court who directed the issue, it is a matter of course to order a new trial, and toties quoties, although no rule of law may have been violated, nor the finding of the jury against the weight of testimony.(2)

The latter branch of the rule will be illustrated in the case of O'Connor v. Cook.(3) An issue had been directed on a modus for certain lands, and the jury found for the plaintiff in the issue, who was the defendant in equity. A motion was made for a

(1) Vide Williams v. Bacon, 1 Sim. & Stu. 415; Tustet v. Bordenave, 1 Jacob, 516; Bootle v. Blundell, 19 Ves. 503; Stace v. Mabbot, 2 Ves. jr. 552; Supra, p. 576.

(2) 2 Tidd, 920; Gra. Prac. 416.

Where the verdict on the feigned issue is unsatisfactory.

new trial on the grounds of misdirection, and new evidence subsequently discovered. The Lord Chancellor "I am of opinion. there ought to be a new trial in this case. Beyond all question. it belongs to the constitution of a court of equity to decide upon matters of fact, if they think proper. But courts of equity have, for a great number of years, where questions of fact have been disputable, thought it a more proper exercise of their jurisdiction, to have them determined by a jury. At the same time, when administering the equitable relief afterwards, their own judgment ought to concur with the verdict, *to this ex *[590] tent at least, that they are not dissatisfied with the verdict. They ought to be satisfied that the questions upon the facts have been fully and distinctly before the jury. The ground upon which I grant the new trial is not that the verdict is not satisfactory upon the facts; for I desire it to be understood that I form no conclusion upon the facts. But I am of opinion the points in this case have not been distinctly before the jury. I cannot hold the language that has been held, as to sending this to the prejudices of a jury. A jury is the constitutional tribunal of the country; and I am not at liberty to suppose they will be guided by prejudice. At law, I should have taken care not to have mixed any prejudices of my own with this question; but I do not think I could, as a jury man, have found the verdicts supporting some of these payments."(1)

So, if the verdict be unsatisfactory, as in The East India Company v. Bazett and others.(2) This was a bill of interpleader, filed against several persons, claiming respectively to be entitled to sixty-two chests of indigo, of which the plaintiffs were holders. On a motion to dissolve the injunction, an issue was directed to try whether the defendants, Cannon and Harper, were entitled to the indigo in question; they were to be the plaintiffs, and the other defendants the defendants in the issue. The trial took place at Guildhall, before the Lord Chief Justice of the King's

(1) Vide Carrington v. Jones, 2 Sim. & Stu. 135; Davis v. Moseley, 13 Price, 423 1 M Clelland, 143; et vide ultra, 13 Price, 755; 1 M'Clelland, 705. (2) 1 Jacob, 91.

3;

Where the verdict on the feigned issue is unsatisfactory.

Bench and a special jury, and a verdict was found for the defendants. A motion was made for a new trial, on grounds contained in the opinion of the court. The Lord Chancellor.-" Was

this case so satisfactorily tried that the conscience of the [*591] court can be assured that it was duly considered and duly decided? The jury were charged by the judge, and perhaps they might have been charged to decide in the manner in which they have decided; they then retired, whether for an hour or half an hour is not material, and then three of them return to the court, and represent that it is a case of such difficulty that they think they never shall agree. Looking at their going out of court, under these circumstances, not having then agreed, and at their not having agreed up to the time of their sending the second message to the plaintiff's solicitor, I cannot consider that the question which they could not decide in two hours, could be properly settled in so short an interval as elapsed between that message and their delivering the verdict. I do not think that is the way in which issues from this court should be tried. I beg it to be understood, that I do not impute anything to the jury. They probably thought it was the best verdict; but there was not a period sufficient for consideration between the existence of the difficulty and its removal." And for this cause a new trial was granted.(1)

So, where it appeared the verdict had been obtained by surprise and against the opinion of the learned judge who tried it, being also contrary to the opinion of the equity judge, a new trial was granted.

An issue was directed in Willis v. Farrer,(2) tried before Mr. Justice Buyley and a special jury, who rendered a verdict for the plaintiff. Brougham, for the defendant, obtained a rule to show cause why a new trial should not be granted, on the grounds that the verdict was contrary to the evidence, and given through mistake and surprise, and against the opinion of the learned judge,

(1) Faulconberg v. Pierce, Ambler, 210; Sewell v. Freeston, 1 Chan. Cas. 65.