This is a suit in equity between partners for a settlement of a co-partnership in buying and selling cotton at Memphis. The complainant sought a large recovery against the defendant and demanded a trial by jury. Giving effect to the verdict, the Chancellor pronounced a decree in favor of the defendant and against the complainant for $4,143.56. Complainant appealed.
At the threshold of our investigation we encounter an error in practice for which the decree must be reversed. That error consists in the submission and trial of one hundred and ninety-one (191) so-called issues, presenting separately and almost exclusively a mere controversy as to some isolated and in itself inconclusive fact. The proper practice requires that issues submitted to a jury in the Chancery Court should be such as go severally, to the decision of the entire case, or some distinct branch thereof, upon its merits. McElya v. Hill, 105 Tenn., 319.
The Chancellor, whose action was complained of in Cheatham v. Pearce & Ryan, 89 Tenn., 670, had made a rule for the demand of the jury and the formulation of issues for its trial in his Court. One requirement of that rule was that ‘ ‘ each issue shall embrace only one question of fact,” meaning,
Section 4468 of the Code (M. & V., 5218; Shan., 6285), referring to issues for jury trial in the Chancery Court, provides that ‘ ‘ the issue shall be made up by the parties under the direction of the Court, and set forth briefly and clearly the true questions of fact to be tried.” These concluding words, “the true question of fact to be tried,” signifying those controlling questions of fact whose decision will determine the real merits of the controversy, and do not include those of an immaterial, collateral, or inclusive nature. A mere dispute, or a difference between the statements of witnesses on a given point, is not, under the statute, .a true question of fact, or a proper subject for a •separate issue, unless it is so central and far-reaching that its decision will control the final disposition «of the cause as a whole or in some distinct branch. Any number of points in evidence, tending severally 4o establish a controlling, controverted fact, should Be covered by one issue, and not submitted separately in as many different issues. The latter course was largely pursued in this cause. Whether or not
There is another- reversible error in the record. Both parties to the litigation testified orally before the jury. By oversight a typewritten copy of the stenographer’s notes of the defeiidant’s testimony in chief was at the conclusion of the argument left on the table in the court room, and with the papers properly belonging to the case it improperly went-into the hands of the jury, without the knowledge of either litigant, or any of their counsel, or any" sinister motive on the part of any one. It was-really an accidental occurance, not realized at the time. The next day one of defendant's counsel learned the fact and in the utmost good faith promptly procured a typewritten copy of the stenographic notes of his client’s cross-examination and sent it to the clerk and master to be handed to the jury. This was done to prevent any prejudice that might otherwise result to the complainant from the jury’s consideration of the report of the defendant’s testimony in chief, without that of his cross-examination. It was a creditable act and unquestionably mitigated the injury that the complainant might have suffered' had the counsel been less thoughtful. However the evil consequences of the jury’s reception and consideration of the report of the examination in chief was not entirely cured by the mitigating tendency of the report of the cross-examination. Besides no part of the report of either
As an ancient invocation of the time-honored rule that both adverse litigants are entitled to the like impartial hearing, learned counsel for the complainant quote one of the early sentences of Demosthenes on the Crown as follows; “I pray, likewise, and this specially concerns yourselves, your religion and your honor, that the gods may put it in your minds not to take counsel of my opponent touching the manner in which I am to be heard. That would indeed be cruel. But of the laws and of your oath, wherein, (besides the other obligation) it is prescribed that you should hear both sides alike.”
Authorities are abundant for the proposition that the consideration of a material paper not introduced in evidence, but being submitted to the jury by accident, as in this instance, is ground for reversal. Some of them are, Whitney v. Whitmore, 5 Mass., 405; Thompson and Merriam on Juries, Sec. 386: Railroad v. Lee, 95 Tenn., 388.
In the last case this Court said:
“It was error, also, for the jury to examine and consider diagrams not introduced in the evidence.” 95 Tenn., 390.
For the reasons stated the decree is reversed and the cause' is remanded for a new trial.
In the latter event issues will be made up under the rule announced herein.
Since both parties are equally responsible for the multiplicity of the issues heretofore submitted, and equally blameless for the accidental reception of the authorized report of the defendant’s testimony in chief, each of them will pay one half of the costs of the appeal.