5 Ala. 517 | Ala. | 1843
It is insisted that the decree of the court of chancery is erroneous. 1st. For the refusal to grant a new trial of the issue which had been tried in the circuit court. 2. In directing the costs to be paid by the complainant’s guardian, out of his own estate.
1. The object of directing an issue,. except where the law makes it imperative upon the chancelloi-, is to satisfy his conscience upon some question of fact. No matter how contradictory the proof, he may decide the case for himself without calling in aid the verdict of a jury. The present case is not an exception to this remark, though prudential reasons would have dictated the course that was adopted, yet it was entirely competent for the chancellor to have determined the question of lunacy. [Kennedy’s heirs and ex’rs v. Kennedy’s heirs, 2 Ala. Rep. 624.]
If either party is dissatisfied with the verdict, an application should be made, not to the court in which the issue is tried, but to the court of chancery in which the cause is pending. Upon such motion, that court will not, like a court of law, grant a new trial, upon the ground merely, that improper testimony was received, or proper testimony was rejected. Where it is satisfied, notwithstanding the improper reception or rejection of evidence, that the verdict ought to have been the same, it will not grant a new trial.
The court of chancery has such ample discretion over the subject, that it will not, as a matter of course, direct the issue to be tried anew, though the judge of the court of law certify that he is dissatisfied with the verdict. But it is usual, under such circumstances, to awai’d a new trial. [Faulconberg v. Pierce, Amb. Rep. 210; Atkyns v. Drake, 1 McCl.and Young’s Rep. 229; Pleasants v. Ross, 1 Wash. Rep. 156.]
In the present case, it has not been insisted, that the evidence adduced at the trial of the issue, a part from that objected to, should have led the jury to a different conclusion. If it were competent for this court to revise the decision of the chancellor upon the motion for a new trial, it would be impossible for us to say, that it operated injustice to the complainant, for the reason that the record does not inform us what evidence was before the jury, except as to the single matter stated in the bill of exceptions.
2. In respect to the direction as to the payment of the costs, it is argued for the defendant in error, that whether it be erroneous or not, it forms no ground for the reversal of the decree in the present cause. In Randolph v. Rosser, [7 Porter’s Rep. 249,] it is said to have been previously decided by this court, that er
In this view of the case, we must consider whether the estate of the lunatic should not have been charged with the costs of the suit. It is laid down generally, that trustees, who have a just pretence for suing, and who conduct-themselves fairly, are not chargeable with costs. [2 Wms. on Ex’rs. 1252; Goodrich v. Pendleton, 3 Johns. Ch. R. 520; Arnoux v. Steinbrenner, 1 Paige’s Rep. 82; Manny v. Phillips, 1 Id. 472; Fitzgerald v. O’Flaherty, 1 Moll. Rep. 347; Carmichael v. Wilson, 2 Id. 537; Exparte, Pease Tur. & Russ. Rep. 325; Brown v. Fisher, 4 Johns. Ch. Rep, 441; Matter of Arnhout, 1 Paige’s Rep. 497.]
Conceding that the decree of the chancellor upon the equity of the bill was strictly correct, ye,t we think that the guardian of the lunatic should not have been charged with costs from his own estate. The allegations of the bill are sustained by at least four or five witnesses, whose depositions are found in the record, though the mass of the testimony may greatly incline the other
The decree of the chancellor then, must be so modified as to direct that the costs be thus paid. The costs of this court cannot be imposed upon the defendant (to whom no fault is attributable,) upon the principle, that where parties stand equally fair in every respect, the actor who brings the other into court, ought to pay the expense. [Catlin v. Harned, 3 Johns. Ch Rep. 61.] As the litigation here was such as .the guardian might well move in, to ielieve himself from an unjust burthen, these costs will also be adjudged to bp paid from the lunatic’s estate..