fact submitted, the court should not, in the instructions, indicate to them his opinion on the facts.*

48

§ 628. Exceptions on trial of issue.

In most jurisdictions, on the trial of an issue out of chancery, no bill of exceptions is taken. The conduct and result of the trial are subject to review only in the court of chancery. As the verdict may or may not have been the ground of the decree, an appeal from the latter cannot be made to turn on the judge's rulings at the trial of the feigned issue, but must be decided on the whole case, pleadings, evidence, and verdict, giving to the latter as much effect as it is worth.49 If taken, they can only be used on a motion for a new trial made to the court directing the issue.50

48 Brown v. Parkinson, 56 Pa. 338. See, for instructions to jury, Hoobler v. Hoobler, 128 Ill. 645, 21 N. E. 571; Stickel v. Bender, 37 Kan. 457; Snouffer's Adm'r v. Hansbrough, 79 Va. 177; Beck v. Beck, 163 Pa. 649, 30 Atl. 236; Bell v. Woodward, 47 N. H. 539. For cases considering the right to direct a verdict in favor of one of the parties, see Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250; Todd v. Campbell, 32 Pa. 250; Faust v. Haas, 73 Pa. 295; Lord's Appeal, 105 Pa. 451. See, also, Pier v. Prouty, 67 Wis. 218, 30 N. W. 232; Galvin v. Palmer, 113 Cal. 46, 45 Pac. 172; Robinson v. Dryden, 118 Mo. 534, 24 S. W. 448; Ely v. Early, 94 N. C. 1.

49 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269; Johnson v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 Ill. 391; Dorr v. Tremont Nat. Bank, 128 Mass. 349.

50 Johnson v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 Ill. 391; Barnett v. Montgomery & E. R. Co., 51 Ala. 555; Armstrong v. Armstrong, 3 Mylne & K. 52. For English practice, see Armstrong v. Armstrong, 3 Mylne & K. 45; Clayton v. Nugent, 8 Jur. 867. For practice in Massachusetts, see Dorr v. Tremont Nat. Bank, 128 Mass. 349. For practice in federal courts, see Watt v. Starke, 101 U. S. 247; Johnson v. Harmon, 94 U. S. 371; Brockett v. Brockett, 3 How. (U. S.) 692. For practice in Virginia, see Stannard v. Graves, 2 Call (Va.) 369; Ford v. Gardner, 1 Hen. & M. (Va.) 72; Watkins v. Carlton, 10 Leigh (Va.) 560; Brockenbrough's Ex'rs v. Spindle's Adm'rs, 17 Grat. (Va.) 21. In some jurisdictions it is held that it is proper, on the trial of an issue, to except to the rulings of the trial judge, the misconduct of the jury, and the admission or rejection of improper evidence. Dodge v. Griswold, 12 N. H. 573; Watt v. Starke, 101 U. S. 247; Pence

8 629. Form of verdict.

The form of verdict is usually the same as a verdict in an action at law. It should be certain, and responsive to the issues.51 Every issue must be separately passed upon.52 When a verdict settles and determines that a party to a suit has no interest in the property in controversy, it is ordinarily sufficient, so far as his rights are concerned, without proceeding to determine who, in fact, has such right.5

§ 630. Certifying the verdict.

53

After the trial of the feigned issue, the judge before whom the same was tried certifies how the verdict was found, and whether the same was satisfactory to him or not.54 In the com

v. Garrison, 93 Ind. 345. See Collins v. Jackson, 43 Mich. 561, 5 N. W. 1052; Brockett v. Brockett, 3 How. (U. S.) 691; Watkins v. Carlton, 10 Leigh (Va.) 560.

51 Cooper v. Branch, 86 Ga. 234, 12 S. E. 808.

52 Dunn v. Dunn, 11 Mich. 284; Ayers v. Scott, Sneed (Ky.) 162; Cobb's Ex'r v. Burns, 61 Pa. 281; Brink v. Morton, 2 Iowa, 411. Where the jury agree upon one of several issues, and disagree upon others, the court will not receive a finding upon one issue. The finding must be upon all or none. Berry v. Wallen, 1 Overt. (Tenn.) 186. See, also, Cooper v. Branch, 86 Ga. 234, 12 S. E. 808.

53 McDaniel v. Marygold, 2 Iowa, 500, 65 Am. Dec. 786. Where the issues were whether a certain contract was made, whether the complainant was prevented from performing his part of it by the act of the defendant, and what were the damages, if any, a verdict, "We, the jury, find for complainant, and assess his damages, etc.," was held to be a substantial finding for the complainant on all of the issues submitted to them. State v. Farish, 23 Miss. 483. For other cases on the form and sufficiency of verdicts, see Groover v. King, 55 Ga. 243; Russell v. Falls, 3 Har. & McH. (Md.) 457, 1 Am. Dec. 380; Watson v. Alexander, 1 Wash. (Va.) 340.

54 1 Barbour, Ch. Pr. 454; Milk v. Moore, 39 Ill. 587; Trenton Banking Co. v. Rossell, 2 N. J. Eq. 492; Baker v. King, 6 Yerg. (Tenn.) 402; Kerr v. South Park Com'rs, 117 U. S. 379; Ross v. Pynes, 3 Call (Va.) 568. Where the judge before whom the issues were tried by a jury acted also as chancellor in making the decree, an crder submitting the issues, and a certificate of the verdict, were held unnecessary. Wilson v. Riddle, 123 U. S. 608; Lavell v. Gold, 25 Grat. (Va.) 473. "The court of law is but ancillary to the court of chancery. It has no juris

mon-law practice, a postea is a formal statement, indorsed on the nisi prius record, which gives an account of the proceedings at the trial of the action.55 The trial judge should not only return the postea, but should go further, and furnish a fair statement of the trial to the court directing the issue; but he need not state the entire evidence or give a minute history of the trial. All that can be required of him is to state the general character of the evidence offered, the part objected to, his rulings upon such objections, and his charge to the jury. If any difficulty exists in relation to his report, the chancellor will call on the trial court for an additional report.56 It is held in some jurisdictions that the exceptions taken should also be certified."7 § 631. Power of court over verdict.

The object of an issue is not to bind the court, but to satisfy

diction in such case, except that which is derived from the chanellor's order. It must pursue his directions, admitting papers to be read which he orders to be read, and, if required, it must certify any instructions which are given to the jury, that the chancellor may decide whether they were rightly given or not. Finally, it can give no judgment upon the verdict, but must certify it to the court of chancery, to avail there as it may. Such being the case, the chancellor has the right to see the whole proceedings, and though, to save costs, the verdict only is certified, yet, in strictness, the whole record should be so. But were it otherwise, still the order to certify the verdict necessarily implies that everything should be certified which was spread upon the record as part of the proceedings at the trial. * Upon the trial of an issue out of chancery, the whole of the proceedings at the trial, so far as they are spread upon the record, properly constitute a part of the certificate of the verdict, and of course become a part of the chancery record." Watkins v. Carlton, 10 Leigh (Va.) 560, cited approvingly in Johnson v. Harmon, 94 U. S. 371, 378.

55 Black, Law Dict. tit. "Postea"; Bouvier, Law Dict.

56 Bassett v. Johnson, 2 N. J. Eq. 154. See, also, Sloan v. Westfield, 11 S. . 445; Stannard v. Graves, 2 Call (Va.) 369; Dodge v. Griswold, 12 N. H. 573; Brockett v. Brockett, 3 How. (U. S.) 691. For form of certificate by the trial court to the chancery court, see Russell v. Falls, 3 Har. & McH. (Md.) 457, 1 Am. Dec. 380.

57 Watkins v. Carlton, 10 Leigh (Va.) 560, 572, cited in Johnson v. Harmon, 94 U. S. 371, 378; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1120: Dodge v. Griswold, 12 N. H. 573.

(641)

its conscience, and it is discretionary with the court whether or not it will adopt or disregard the verdict.58 It may disregard it, and enter such a decree as it thinks proper.59

§ 632. Recording verdict.

If a decree is based on the verdict of a jury in an issue out of chancery, the evidence heard by the jury need not be preserved in the record, though, if the court should decree contrary to the verdict, the decree must be sustained by evidence contained in the record.60 In South Carolina it is held that parties to a cause are entitled to the judgment of the court, and that a decree appearing to be based on the verdict alone, it not appearing that the court concurred in the findings, cannot stand.61

58 Adams, Eq. 377; Watt v. Starke, 101 U. S. 247; Meeker v. Meeker, 75 Ill. 260; Pittman v. Lamb, 53 Miss. 594; Reed v. Axtell, 84 Va. 231, 4 S. E. 587; Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583; Milk v. Moore, 39 Ill. 588; Detroit Nat. Bank v. Blodgett, 115 Mich. 160, 73 N. W. 885; Dunn v. Dunn, 11 Mich. 285; Bootle v. Blundell, 19 Ves. 494b; East India Co. v. Bazett, 1 Jac. 91.

59 Kohn v. McNulta, 147 U. S. 238; Wise v. Lamb, 9 Grat. (Va.) 294; Smith's Adm'r v. Betty, 11 Grat. (Va.) 752; Vangilder v. Hoffman, 2? W. Va. 1. See, however, Dudley v. Dudley, 176 Mass. 34, 56 N. E. 1011. In Illinois it is held that, where a statute requires an issue out of chancery to be made up to be tried by a jury, the verdict is not advisory, but is as conclusive as the verdict of a jury in an action at law. Lenning v. Lenning, 176 Ill. 180, 52 N. E. 46. Where the issue is not so required by statute, it is discretionary with the chancellor to reject the verdict and render a decree against the finding, or grant a new trial, as he may believe justice requires. Guild v. Hull, 127 Ill. 523, 20 N. E. 665; Biggerstaff v. Biggerstaff, 180 Ill. 407, 54 N. E. 333. 60 Bonnell v. Lewis, 3 Ill. App. 283; Owens v. Owens, 56 Ill. App. 313; Fanning v. Russell, 94 Ill. 386; Pankey v. Raum, 51 Ill. 88.

61 Rynerson v. Allison, 28 S. C. 81, 5 S. E. 218; Flinn v. Brown, 6 Rich. (S. C.) 212; Grierson v. Harmon, 16 S. C. 618. The facts and proof on which a verdict is founded ought regularly to be placed on the record of the suit. Bentley v. Clark, 3 Dana (Ky.) 564. It was held in Pennsylvania that where, on bill and answer, the court sent an issue to the jury as to whether the deed and agreement mentioned in the complainant's bill were fraudulently obtained, it is not a valid objection to a decree. after verdict, that the evidence was not returned

$ 633. Granting new trial.

Application for a new trial should be made to the court directing the issue.62 A party against whom a jury has found, on the trial of an issue in an equity case, will be understood as acquiescing in the finding, unless he applies for a new trial to the court which directed the issue.63 The court, on such a motion, will not go into the equities.64 The application for a new trial must be made within a reasonable time.65 Where five years and a half had elapsed since the trial, the court refused the application upon that ground. A motion for a new trial, made the second term after the nisi prius record and certificate of the judge had been filed, on an ex parte statement of the evidence, was denied on the ground of delay and the want of proper documents.67 By the English practice, an application for a new trial must be made before the hearing on further directions.68

66

The chancellor may order new trials, for finding issues, until his conscience is satisfied." Save in cases required by statute

with the verdict to the equity side of the court. Saylor's Appeal, 39 Pa. 495.

62 Johnson v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 Ill. 386; Bootle v. Blundell, 19 Ves. 500; Van Alst v. Hunter, 5 Johns. Ch. (N, Y.) 153; Birdsall v. Patterson, 51 N. Y. 43; Taylor v. Mayrant, 4 Desaus. (S. C.) 505; Watt v. Starke, 101 U. S. 247.

63 Fanning v. Russell, 94 Ill. 386; Doe v. Roe, 1 Cow. (N. Y.) 216; Bootle v. Blundell, 19 Ves. 500. On a motion for a new trial, the party submitting it must procure, for the use of the chancellor, notes of the proceeding and the evidence. Clyde v. Richmond & D. R. Co., 18

C. C. A. 467, 72 Fed. 121; Watt v. Starke, 101 U. S. 247. 64 Cohen v. Gratz, 3 Wall. Jr. 379, Fed. Cas. No. 2.963.

es 1 Barbour, Ch. Pr. 454.

66 Legard v. Daly, 1 Ves. Sr. 192.

67 Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 153.

68 1 Barbour, Ch. Pr. 454; Attorney General v. Montgomery, 2 Atk. 378. In New York, however, it was held that a motion for a new trial was allowable at the hearing upon the equity reserved, the court saying that a new trial had been as often granted in that way as upon a previous petition or distinct motion for the purpose. 1 Barbour, Ch. Pr. 454; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 153.

69 Williams v. Bishop, 15 Ill. 553; Patterson v. Ackerson, 1 Edw. Ch. (N. Y.) 96; Marshall's Ex'rs v. Marshall's Ex'rs, 18 W. Va. 395; Kirby