dict, to this extent 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 juryman, 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 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 court can be assured that it was

(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.

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 retire, 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 any thing 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 Bayley 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, who, on the trial, had gone through the evidence of the

(1) Faulconberg v. Pierce, Ambler, 210. Sewell v. Freeston, 1. Chan Cas. 65. (2) 3 Younge & Jervis, 264. Supra, p. 356.

plaintiff, and some part of the evidence of the defendant, and was making an observation in favour of the defendant, when the jury interrupted him, saying, they were quite satisfied; and the judge thereupon stopped, and the jury found immediately a verdict for the plaintiff. The Lord Chief Baron, after a review of the testimony and the opinion of the judge, followed with an expression of his dissatisfaction with the verdict, concludes:-"I think the learned judge was warranted in directing the jury to consider whether hay might not, in the early terriers, mean all the produce of grass land. In the interpretation of ancient instruments, usage has frequently supported a new mode of construction. In this case that construction is sustained, not only by the usage of payment, but by many other instruments putting that construction upon them, and by a great body of parol testimony, the reputation in the parish, and the declarations of deceased parishioners. I do not feel that the expressions in the documents are so full, clear, and unequivocal as to authorize me to presume the endowment necessary to support the vicar's claim, in opposition to undisputed usage; to the strong probability of the title being in substance rendered elsewhere; to the claim of the parish for many years; to the formal admission of that claim by two of the vicars; and to the acquiescence of all, till the present suit. I think the verdict must be set aside, being against the opinion of the learned judge; and that it must be tried again."(1)

So, in Vanlear v. Vanlear. (2) A new trial awarded on a feigned issue, to try the validity of a will, on the dissatisfaction of one of the judges who tried it. The verdict was for the plaintiff, thereby establishing the will. The defendant's counsel moved the court to grant a new trial,

(1) Vide Morris v. Davies, 3 Russell, 318. Atkyns v. Drake, 1 M'Clelland & Younge, 380. (2) 4 Yeates, 3.

on the ground that the defendant was sick, and unable to attend, having material testimony to produce; that the trial was urged on by the plaintiff by surprise, and that the verdict and judgment thereon would be final and conclusive. The charge of the chief justice was in favour of the writing as a will; but Smith, J., added, that on the most mature reflection, he was not satisfied with the decision of the jury, and thought the case required another hearing. The counsel submitted the case to the court, Per Curiam.-"We wish not, by our remarks, to prejudice the plaintiff's cause. Let there be a new trial; it will give more general satisfaction."

As the power to grant new trials originates with the jurisdiction of courts of equity, they exercise it in all cases, indiscriminately, at common law. In this state, however, there is one class of cases that have been provided for specially, as to the exercise of equity powers in granting new trials in feigned issues. Our statute having introduced a particular kind of equity jurisdiction, granting divorces a vinculo matrimonii, on the ground of adultery, has directed a feigned issue, and added that the court

may award a new or further trial of such issue as often as justice shall seem to require."(1)

Thus, in Germond v. Germond, (2) where the testimony was not warranted by the issue. The complainant had charged the defendant with having committed adultery with one W. C. F., in Rensselaer county, and in NewYork with persons unknown; and on the trial had proved the defendant had committed adultery in that county, not with W. C. F., but with another. The jury found the adultery as charged. The finding being out of both the issue and the testimony, upon an application for a new trial, the chancellor having reviewed the pleadings, and

(1) 2 R. S. 145. § 40.

(2) 6 Johns. C. R. 347.

the English authorities bearing an analogy to the principal case, concludes: "I have gone into this examination of analogous cases, to show that probably the better opinion. is, that a charge of adultery need not specify the names of the persons with whom it was committed; and certainly it cannot and need not be required, if the persons are unknown when the bill is filed. But, in this case, as the feigned issue specified a particular individual in the county of R., and had no general charge as to that county, I conclude that the plaintiff should be confined to that specific charge. I shall accordingly set aside the verdict, on account of the admission of evidence not warranted by the issue as it stood, and shall award a new trial, and allow the plaintiff to amend the feigned issue as he shall be advised."(1)

5. When the feigned issue is directed out of chancery, the application for a new trial must be made to that court. It is intended to inform and to satisfy the court, and of this no other court can be the judge.(2)

Bowker v. Nixon. (3) This was an issue directed by the court of chancery, which was tried before Heath, J. Shepherd, Solicitor General, now moved for a new trial, upon the ground that certain evidence had been improperly rejected. He was aware that the general rule, with respect to issues out of chancery, required that the motion for a new trial should be first made in that court; but he conceived, that where the point related to the propriety of the decision of the judge who presided at the trial, as to the admission or rejection of evidence, it formed an exception to the rule, and that the motion, in such case, ought to be

(1) Et vide 2 Mad. Chan. 381. Fowkes v. Chadd, 2 Dick. 576. Bates v. Graves, 2 Ves. jr. 287. Codd v. Codd, 2 Johns. C. R. 224.

(2) Vide 1 Newl. Chan. Prac. 353.

(3) 6 Taunt. 444.