to be submitted to a jury, a new trial will be ordered on slighter grounds than in an ordinary action at law.70 The court will grant a new trial not only in cases where the verdict is against the evidence, but it will nicely balance the evidence on both sides, and, where it finds that the verdict is contrary to the weight of the evidence, it will direct the issue to be tried over again. Therefore, if the judge before whom the issue is tried certifies the verdict to be against the evidence, the chancellor will usually grant a new trial. It may be granted on the ground of surprise ;72 or for fraud practiced upon the party applying therefor;73 or for newly-discovered evidence, where it is shown that there has been some surprise or fraud upon the party applying.74 The court will not grant a new trial upon the production of new evidence unless it is shown that there has been some fraud or surprise upon the party applying.75 It will not do so where the party is in possession of the evidence, but either in the exercise of discretion, or from neglect, does not produce it at the trial, or where, though not in possession,

v. Newsance, 9 N. C. 105; Larrabee v. Grant, 70 Me. 79; Gaby v. Hankins, 86 Ill. App. 529; Stace v. Mabbot, 2 Ves. Sr. 552; Stannard v. Graves, 2 Call (Va.) 369.

70 Dunn v. Dunn, 11 Mich. 284; Clayton v. Yarrington, 33 Barb. (N. Y.) 144. "In Barker v. Ray, 2 Russ. 63, Lord Eldon said: "This court, in granting or refusing new trials, proceeds upon very different principles from those of a court of law. It has been ruled over

and over again, that if, on the trial of an issue, a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet, if this court is satisfied the verdict ought

not to have been different, it will not grant a new trial merely upon such grounds.' See, also, Hampsoh v. Hampson, 3 Ves. & B. 41; Brockenbrough's Ex'rs v. Spindle's Adm'rs, 17 Grat. (Va.) 28." Powell v. Manson, 22 Grat. (Va.) 177, 192.

711 Barbour, Ch. Pr. 456; Southall v. McKeand, 1 Wash. (Va.) 336; Faulconberg v. Peirce, 1 Amb. 210; Cleeve v. Gascoigne, 1 Amb. 323; Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325.

721 Barbour, Ch. Pr. 457; Exton v. Turner, 2 Ch. Cas. 80.

731 Barbour, Ch. Pr. 457.

741 Barbour, Ch. Pr. 457.

75 1 Barbour, Ch. Pr. 457; Standen v. Edwards, 1 Ves. Jr. 133.

he had full notice that it was in the power of the other party to produce it.76 A new trial will be granted on the ground of the absence of a material witness, whose testimony is not merely corroborative. It must be shown that there is something particular in his evidence which is of importance, and that it was not in the power of the party to have the trial put off.77 The court will also order a new trial of an issue where it sees reason to be dissatisfied with the conduct of the jury.78 A new trial will not be directed merely on the ground that improper testimony was received at the trial, or that the judge rejected that which was proper, if, upon the whole facts and circumstances, the chancellor is satisfied that the result ought not to have been different, had such testimony been rejected in the one case or received in the other.79 A new trial may be granted on the ground of misdirection of the jury by the judge who tried the issue, but a new trial on this ground will not be granted if the court is satisfied that, upon the evidence, the jury would not have given a different verdict.80 It has been held that the fact

that the presiding judge, upon the trial of an issue out of chancery, expressed to the jury his opinion of the facts, is no ground. for a new trial.81 If the suit relates to the right to land, the

761 Barbour, Ch. Pr. 457; Standen v. Edwards, 1 Ves. Jr. 133; Legard v. Daly, 1 Ves. Sr. 192.

71 Barbour, Ch. Pr. 458; Cleeve v. Gascoigne, 1 Amb. 323.

78 1 Barbour, Ch. Pr. 458; East India Co. v. Bazett, Jac. 91; Pleasants v. Ross, 1 Wash. (Va.) 156.

791 Barbour, Ch. Pr. 459; Peabody v. Kendall, 145 Ill. 519, 32 N. E. 674; Black v. Lamb, 12 N. J. Eq. 108; Mulock v. Mulock, 1 Edw. Ch. (N. Y.) 14; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Lyles v. Lyles, 1 Hill Eq. (S. C.) 76; Kirkpatrick v. Atkinson, 11 Rich. Eq. (S. C.) 27; City of Macon v. Harris, 75 Ga. 761; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Hampson v. Hampson, 3 Ves. & B. 41; Bootle v. Blundell, 19 Ves. 500. See Head v. Head, 1 Sim. & S. 150, Turn. & R. 142; Barker v. Ray, 2 Russ. 63; Collins v. Hare, 1 Dow & C. 139.

so 1 Barbour, Ch. Pr. 458; Tatham v. Wright, 2 Russ. & M. 31; Barker V. Ray, 2 Russ. 63; O'Connor v. Cook, 8 Ves. 536; Marshall v. Croom, 60 Ala. 121; Trenton Banking Co. v. Rossell, 2 N. J. Eq. 511; Frank v. Humphreys, 24 S. C. 325.

81 Lyles v. Lyles, 1 Hill Eq. (S. C.) 76.

court will frequently grant new trials of issues, even in cases in which the issue has been properly tried, and the verdict is satisfactory upon the evidence, the practice of the court being adverse to making a decree to bind the inheritance, where there has been but one trial at law.82 Where, by statute, an issue is required to be submitted to a jury, the court will be governed by the same rules, and the same presumptions will prevail in favor of the verdict, as in an ordinary action at law.83 If the court is satisfied that substantial justice is done by a verdict on an issue, the object of which is to inform the conscience of the court, it will not be disturbed on mere technical grounds.84 The form of the issue will not be changed upon a motion for a new trial. If the party desires to question the form of the issue, he must do so by presenting a petition for a rehearing of the decree or order directing it.85

§ 634. Effect of a verdict on first trial upon the second trial.

Where a verdict upon a former trial is given in evidence upon a second trial, it is necessary for the person who gives it in evidence to show upon what title it was obtained, and the party on the other side is at liberty to show upon what proofs it was given, which, if there is anything impeaching the evidence upon which the first verdict was given, will be very material.86

821 Barbour, Ch. Pr. 459; Darlington v. Bowes, 1 Eden, 271; Stace v. Mabbot, 2 Ves. Sr. 552; Winchilsea v. Wauchope, 3 Russ. 441; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 152. See, also, McRae's Ex'rs v. Wood's Ex'r, 1 Hen. & M. (Va.) 548.

83 Meeker v. Meeker, 75 Ill. 260; Gibbs v. Hooper, 2 Mylne & K. 353. 84 Bassett v. Johnson, 2 N. J. Eq. 154; Black v. Lamb, 12 N. J. Eq. 108. Where a jury impaneled to try an issue fails to agree, the court may refuse to call another jury, and may decide the case on the evidence heard. Keithley v. Keithley, 85 Mo. 217. See Armstrong v. Armstrong, 3 Mylne & K. 45.

85 1 Barbour, Ch. Pr. 455; Bassett v. Johnson, 2 N. J. Eq. 154; White v. Lisle, 3 Swanst. 351; Legard v. Daly, 1 Ves. Sr. 192; De Tastet v. Bordenave, Jac. 516.

86 1 Barbour, Ch. Pr. 460; Faulconberg v. Peirce, Amb..210; Atkins v. Drake, McClel. & Y. 229.

§ 635. Procedure after verdict.

After the issues at law have been tried, the cause, unless a new trial is moved for and granted, must be heard for further directions upon the equity reserved.87 The cause then comes on to be heard in the regular course, when such final or other decree as the case calls for will be pronounced.88 "A verdict upon an issue ordered by a court of equity is in no just sense final upon the facts it finds, or binding upon the judgment of the court. The court may, at its pleasure, set it aside, and grant a new trial, or, disregarding it, may proceed to hear the cause, and decide in contradiction to the verdict, or it may adopt the verdict, sub modo, and give it a limited effect only, but it can never be known what effect is given to the verdict, or whether any is given to it, until the subsequent hearing upon the merits, and a decree rendered thereon by the court. Under such circumstances, it is plain to me that this verdict is not admissible in evidence, for it has not been sanctioned or established by the court, and, without such sanction, it is no proof of any fact but that it was actually rendered in the case, and not proof of the facts found thereby."s

871 Barbour, Ch. Pr. 460; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1146; Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. By the English practice, this could not be done until after the first four days of the term next after the trial have elapsed, in order that the party against whom the verdict had been found might have an opportunity of moving for a new trial. 1 Barbour, Ch. Pr. 461. This practice was afterwards changed, and the cause allowed to be set down as soon as the trial had taken place. Rodgers v. Nowill, 6 Hare, 338.

881 Barbour, Ch. Pr. 461. See Prudden v. Lindsley, 29 N. J. Eq. 615; Armstrong v. Armstrong, 3 Mylne & K. 45; Pember v. Mathers, 1 Brown Ch. 52; East India Co. v. Donald, 9 Ves. 275; Legh v. Holloway, 8 Ves. 213; Woodley v. Johnson, 1 Moll. 394.

89 Mr. Justice Story, in Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. In Ogle v. Adams, 12 W. Va. 213, 224, is found a form of a decree on an issue out of chancery: "This cause came on this day to be further heard upon the bill and answer and replication thereto, the depositions of witnesses, and the verdict of the jury upon the issue out of chancery in this cause, and was argued by counsel. On consideration whereof,

the said verdict is approved and confirmed. The court doth adjudge, order, and decree," etc.

Costs of feigned issues: These are usually in the discretion of the court. 1 Barbour, Ch. Pr. 462; 2 Harrison, Ch. Pr. 570.

On the question of costs, see Beames, Costs, 234, appendix xv., 369; Standen v. Edwards, 1 Ves. Jr. 135; Berney v. Eyre, 3 Atk. 387; Wright v. Wright, 5 Sim. 449; White v. Wilson, 13 Ves. 87; Webb v. Claverden, 2 Atk. 424; Scaife v. Scaife, 4 Russ. 309; Bearblock v. Tyler, 1 Jac. & W. 225; Anonymous, 2 P. Wms. 68; Edwin v. Thomas, 1 Vern. 489: White v. Lisle, 4 Madd. 214; Devie v. Brownlow, 2 Dickens, 796. (648)