Milk v. Moore

Mr. Chief Justice Walker delivered the opinion of the Court: This-was a bill in chancery filed to foreclose a mortgage. It was tried in the court below, by a jury, and the bill was dismissed with a decree for costs against complainant. The cause is brought to this court on error, to reverse that decree. The first deviation from long settled and uniform practice in a court of equity, was in referring the whole case to a jury for trial. Such a practice is unknown to the courts of equity both in Great Britain and in this country. In this court no question is ever submitted to a jury, except on a feigned issue, which, when the common law and equity jurisdiction is vested in different persons, is sent to a court of law for trial; and when the common law judge and the chancellor is *he same person, the issue is sent to the common law side of the docket. And the verdict when found is certified to the chancellor, if not in fact, it is so in theory. In forming a feigned issue there is a formal declaration filed, together with other pleadings, making the issue of fact to be tried. Our statute has, however, authorized an issue in chancery to. be formed and to be tried by a jury. Under this statute, it has been the practice to make an issue without using the common law forms of pleadings. But the issue in chancery, or if there be more than one, should be distinct and explicit, presenting in each a single question, so clearly that it could not but be understood by the jury, and their verdict should be responsive to each. The same section declares that, in all other cases in equity, the mode of trial shall be the same as has been heretofore practiced in courts of chancery. The practice has never prevailed, unless by legislative enactment, of submitting the bill and answer to trial by a jury. But in eases where the evidence is voluminous, the witnesses numerous, and the facts are doubtful, it may be convenient and highly proper to form an issue and have it tried by a jury in the mode contemplated by the statute, or on a feigned issue properly made; but in those cases it is not merely by the consent of the parties, but is solely under the control of the chancellor. The chancellor is the sole judge of the evidence and its weight; and, even when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it, and render a decree against their finding, or he may grant a new trial, as he may believe justice demands: In our courts of equity, the chancellor being also the common law judge, he necessarily hears all of the evidence upon which the jury acts, and, if satisfied the jury have found correctly, it would be his duty to adopt their finding, but, if dissatisfied, it would be equally his duty to disregard the verdict, and proceed with the cause in such a manner as to do complete justice between the parties. But the submission of the entire case to a jury is contrary to the practice, and is believed not tg.be calculated to promote justice, and should be discouraged, even when the parties desire such a trial. The main question in the case is whether the decree was required by the evidence in the case. It is voluminous, and, as might reasonably be expected in such a case, somewhat conflicting. But, after a careful examination, we have arrived at the conclusion that the decree is unwarranted. The defendant alleged a warranty and its breach as a defense to the mortgage. This he has failed to prove, or, if a warranty might be inferred from the evidence, he has failed to establish its breach. The proof of this allegation was upon him, and until established it must fail as a defense. Again, he alleged in his answer that the sheep for which the note and mortgage were given were diseased, and that fact was known to complainants or their partner who made the sale, and that this fact was fraudulently concealed from defendant at the time be entered into the contract. To have succeeded in this defense, it was necessary for him to have established the fraud. But a careful examination of the evidence, we think, shows that he has failed in the proof. It is true that he has adduced some evidence that tends to show that the sheep were diseased, but no evidence is found tending to prove that if they were it was known to complainants. The evidence is strong, if not conclusive, that the sheep were insufficiently fed, sheltered and pastured, and that their food was unsuitable, both in quality and quantity. After he had obtained the sheep and got them home, he repeatedly expressed himself well satisfied with them and his contract. The evidence, we think, shows that other causes contributed largely, if not solely, to produce the death of the sheep, than any disease that existed at the time they were purchased. A number of practical wool-growers gave it as their opinion, based upon an examination of the flock, that they were not diseased when they came to defendant’s hands. They were familiar with their treatment and concur in the opinion, that disease was induced by insufficient pasturage, feeding, as well as by a want of food of a proper quality, a want of sufficient shelter and feeding accommodations. And they say that proper care in other respects was not given them. These are the conclusions of men of known and admitted experience and skill in the business. Opposed to their opinions is the evidence of persons knowing nothing or at most but little in reference to such matters. Eor do they give facts which are satisfactory to sustain their conclusions. We are therefore of the opinion, that the evidence fails to establish the defense, and that the decree dismissing the bill and giving costs in the case must be reversed and the cause remanded, without a decree for costs in this court. We find a large amount of costs made in this case, by bringing up a transcript of subpoenas for witnesses, notices for taking depositions, magistrate’s certificates, copy of fee bills, etc. These are properly no part of the record of the case, and it is improper to incumber the record with them. When such a record is brought here, we will not take the time to examine and designate what is properly recoverable as costs by the successful party, and tax the same, but will refuse the party costs for his misconduct. Deoree reversed.