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the money to Henry, had full notice of the assignment of the bond to Daniel Ruffner. The chancellor perpetuated the injunction, and Ruffner appealed; and by the court of appeal the decree was reversed, the injunction dissolved, and the bill dismissed with costs.

So, Payne v. Trezevant.(1) Upon a motion to set aside a verdict, and grant a new trial, on the grounds that the finding of the jury was against law, evidence, and the opinion of the judge, before whom the cause was tried. The action was on two promissory notes, and the defence was usury. The judge, in charging the jury, told them they were bound by the act of the legislature, enacted by the supreme authority of the state; and if a jury was justifiable in disregarding any one act, they might refuse to be bound by any other act or law which did not accord with their own opinions; and thus the fixed and stable principles of law would, in future, be obliged to give way to the fluctuating and uncertain opinions of juries. That the act in question made all usurious contracts void; and that the evidence in this case, brought the usurious transaction between the original parties, borrower and lender, so immediately and directly under the act, that it was impossible for them to wink so hard as not to see it. Yet the jury found for the plaintiff. The court, in disposing of the motion, observed, that the jury had found against the clear and positive testimony, as well as against a public law of the state, and the clear opinion of the judge, who tried the case, upon all the points, as reported by him to the court. That it was the duty of the court, whenever the juries of the country will take upon them to disregard the laws of the land, and clear and indubitable testimony, to set aside their verdicts toties quoties, until they can get twelve men firm enough to defend and support the legal

(1) 2 Bay, 23.

institutions; otherwise, the fluctuating sentiments of juries, would prevail against the stable principles of law.

This court had decided in a previous case, Moore v. Cherry,(1) where there had been two concurring verdicts, that whenever the principles of law are outraged by verdicts, another trial ought to be granted, "so as to give the party a chance for justice."

So the court will set aside a second verdict, if there have been any undue means resorted to, to obtain it. Thus, in an Anonymous case.(2) Per Holt, Chief Justice." After a second verdict on the same side, it is not fit to grant a new trial, because the judge did not like the verdict; but if there were any practice used in obtaining it, it is otherwise."

This is one of the consequences of fraud, embraced in the rule, so universal as to have become a legal maxim, “Fraud will vitiate every thing.”

(1) 1 Bay, 269.

(2) 6 Mod. 22.

CHAPTER XVI.

IN EQUITY, AFTER VERDICTS ON FEIGNED ISSUES AND ISSUES AT LAW.

BEFORE new trials at law became the settled practice of courts of law, suitors were driven into equity for relief from unjust verdicts; and to direct new trials at law, on account of fraud or surprise, under pain of perpetual injunction, formed an extensive branch of equity jurisdiction.(1) Since the introduction of new trials, and the facilities afforded by courts of law to correct improper verdicts, applications to courts of equity are much less frequent, or rather, are become obsolete.(2) The jurisdiction, however, remains; and, for the same causes, surprise and fraud, the parties may still resort for relief to equity.(3) This, it appears, they may do, even after they have unsuccessfully applied to the courts of law; but not upon the same merits as there discussed, if within their jurisdiction.(4)

But, besides this power to correct oppressive and illegal verdicts at law, courts of equity have a class of cases originating in equity jurisdiction, and directly and exclusively under their own control, called "Feigned Issues." These courts have, by their constitution, the right to dispose of all cases upon the pleadings and proofs, without the intervention of a jury; but it is usual, in matters of intricacy and

(1) 1 Burr. 390.

(2) Vide 6 Johns. C. R. 479, and the cases there cited.
(3) 1 Johns. C. R. 91.
(4) Ibid.

importance, especially those involving questions of fraud, to direct an issue at law, to be tried by a jury, to inform the conscience of the court. The granting or refusing a new trial, on a feigned issue, is wholly a matter of discretion. It is never done when the proof is clear on the one side or the other, nor when, in any event, the verdict could be but of little value.(1)

The practice is thus laid down by Sir William Blackstone.(2)—“The chancellor's decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial, by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by a jury; especially such important facts as the validity of a will, or whether A. is the heir at law to B., or the existence of a modus decimandi, or real and immemorial composition for tithes. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king's bench, or at the assizes, upon a feigned issue. For, in order to bring it there, and have the point in dispute, and that only, put in issue, an action is brought, wherein the plaintiff, by a fiction, declares that he laid a wager of £5 with the defendant, that A. was heir at law to B., and then avers that he is so, and therefore demands the £5. The defendant admits the feigned wager, but avers that A. is not the heir at law to B.; and thereupon that issue is joined, which is directed out of chancery to be tried, and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans, and are also frequently used in courts of law, by consent of the parties, to determine some

(1) 1 Johns. C. R. 459.

(2) 3 Blacks. Com. 452.

disputed rights, without the formality of pleading, and thereby to save much time and expense in the decision of a cause."

In two instances only, by the English practice, that of an heir and of a rector, it is a matter of right to have an issue directed.(1) With us feigned issues are provided by statute, upon an appeal from the decision of the surrogate to a circuit judge, on probate of a will, and a reversal by the latter, founded upon a question of fact;(2) and also upon issue, taken by answer, to a bill of divorce, on the ground of adultery.(3)

It is also expressly enacted, that all issues upon the legality of a marriage, (except where a marriage is sought to be annulled, on the ground of the physical incapacity of one of the parties,) shall be tried by a jury of the country; and the chancellor shall award a feigned issue for the trial thereof.(4)

These issues, being thus particularly under the direction of the court, are moulded to the purposes of equity. To accomplish this, it is necessary the court should, in some instances, proceed upon rules incident to its own peculiar jurisdiction. Although courts of equity and law equally aim at the same result, and equally respect the finding of questions by a jury, of which, when referred to them, they are the constitutional judges, when bottomed upon a full disclosure of the merits; yet when there has been a partial or unjust result, occasioned by circumstances which the injured party could neither prevent nor control, or when important rights are depending, a court of equity will interpose, on grounds, and for reasons, differing from a court of law. These general remarks may be embodied and illustrated thus.

(1) 2 Mad. Chan. 364. (3) 2 R. S. 145.

(2) 2 R. S. 66, and 609.
(4) 2 R. S. 175.

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