
    Paul and Others v. Paul.
    Tuesday. May 17, 1808.
    Issue Out of Chancery — How Witnesses Examined— Evidence. — it is the right and usual course in the trial of an issue out oi Chancery, to examine the witnesses viva voce; and it cannot properly be inferred that the answer and depositions, were the only evidence exhibited on such trial: on the contrary, it ought rather to appear that such written evidence was actually made use of, since the Court of Chancery ought to give directions respecting the reading of the papers filed in the canse.
    Same — Effect Where Court Is Satisfied with Verdict.—
    The Court before whom an issue out of Chancery was tried, having been satisfied with the verdict of the Jury, and having overruled amotion for a new trial, to which opinion no exception was taken, the verdict ought forever to remain undisturbed.
    On an appeal from a decree of the Superior Court of Chancery for the Staunton District.
    A writing, purporting to be the last will and testament of John Paul, the elder, was produced to the Court of Rockbridge County, on the 6th of January, 1795, by one *of the executors, for probate; which was contested by four of the heirs at law of the said Paul, on the ground, that at the time of making it, he was non compos mentis. After an examination of several witnesses and a full hearing of the cause, the Court was of opinion that the decedent at the time of making the supposed will, was non compos mentis, and refused to admit it to record. From this decision an appeal was taken by John Paul, jun. the principal devisee, to the District Court of Staunton, where the judgment of the County Court was reversed on the 4th of April, 1795, and the will remanded to the County Court of Rockbridge, with directions to admit it to record; which was done accordingly, on the 1st of September, 1795.
    On the 8th of May, 1795, Mary Paul, relict of John Paul, the elder, and six others his children and heirs at law, instituted a suit on the Chancery side of the County Court of Rockbridge, against John Paul, jun. to set aside the will. The bill charged that the testator was of great age, and such infirmities both of body and mind, as to be in a state of second childhood, and that the defendant had, by fraud and imposition, obtained the will in question to be made, whereby the testator gave him almost the whole of his estate, contrary to that equita-b'e disposition of his property among all his children, which he had formerly made, by his will, when he was in his senses. And what rendered the inequality more apparent was, 'that the testator had previously made provision for the defendant fully adequate to his circumstances, and more than could be done for the rest of his children.
    The answer positively denied all the allegations of the bill; disclaimed any knowledge of the will of John Paul the elder, till after his death: and stated that it was wholly written by the testator himself. Prom the numerous instances of false orthography, it was evidently the production of a very illiterate man.
    Several depositions were taken on both sides, in which the witnesses express various opinions with respect to the sanity of the testator; but, in point of number, those in ^favour of the will considerably preponderated; among which were included the depositions of the subscribing witnesses.
    On setting down the cause for hearing, in June, 1797, a feigned issue was made up, (apparently without any direction from the Court,) on the question, whether the testator “at the date of the writing called his will, was of sound mind and memory and capable of making a legal disposition of his estate.’’ The issue was tried on the common law side of the Court, on the 4th of May, 1798, and the Jury found a verdict in these words: “We of the Jury find that John Paul, sen. in the declaration mentioned at the date of the writing claimed as his will, to wit, on or about the 14th of May-, 1794, was not of sufficiently sound and disposing mind, to make a lawful disposition of his property.’’ And they further found the sum stated in the feigned issue.
    A motion for a new trial was made by the defendant,' “which being argued by counsel on both sides, the Court was of opinion, on duly considering the matter and the circumstances of the case, that the defendant had failed to shew good cause therefor, and the said motion was rejected and ordered to be overruled.” No exception was taken shewing atiy ground for a new trial. The clerk thereupon by mistake proceeded to make an order annulling the will of John Paul the elder, instead of certifying the verdict of the Jury to the Chancery side of the Court.’
    That mistake was rectified at the August term, 1798; and the cause was continued for a further hearing on the Chancery side of the County Court, until August, 1799, when the Court, without having set aside the will in express terms, made a final decree, by which they adjudged that the writing in the bill mentioned purporting to be the last will and testament of John Paul, sen. was not his will, but was invalid, it appearing by the verdict of the Jury, that at the time of making the same, he was not of a sound disposing mind and memory; and thereupon distribution of his estate was directed as if he had died intestate.
    *The cause was removed to the late High Court of Chancery by a petition of appeal, and afterwards transferred to the Superior Court of Chancery for the Staunton District, under the act of the 23d of January, 1802;  the Judge of which being of opinion that the depositions exhibited in the record and proceedings, were to be considered by the Court as the only evidence in the cause; (the unofficial certificate of the clerk of the Count3 Court, which stated that the witnesses had been examined before the Jury, not being considered as evidence;) that those depositions, did not justify the Jury in finding that the testator was insane at the time of making and publishing his will; and moreover that the County Court erred in directing distribution according to the statute, without having first set aside the will; directed a new trial of the issue to be had before the-common law District Court of Staunton. Prom that decision this appeal was taken.
    Hay, for the appellants.
    It is a fixed rule of law, that the Court before which an issue is tried on the validity of a will, is alone competent to grant a new trial. The Court of Rockbridge County having heard, the whole evidence, refused a new trial, after solemn argument, on a motion made for that purpose.
    Even if all the evidence given to the Jury had been spread upon the record, the-Chancellor would have had no *right to look into it, because the verdict was. final between the parties, subject only to be set aside, for good cause shewn, by the Court before which it was found. The Chancellor, however, thought himself not only authorised to consider the evidence in the record, and to grant a new trial, but to. consider it as the whole evidence, when the record expressly says, that a number of witnesses gave testimony viva voce, which, of course, was not before the Chancellor.
    Randolph. The deposition of every witness, sworn on the trial of the issue, is contained in the record.
    Hay. How does that appear? And, even if it did, there is a material difference between the depositions of witnesses, and viva voce testimony given before a Jury. A deposition may be positive as to a fact; and-yet, if the witness were before a Jury, they might not pay the least attention to any thing he said.
    The act of Assembly authorises those who wish to contest the validity of a will to institute a suit in Chancery; upon which an issue shall be made up, to be tried by a Jury, whether the writing be the will of the testator or not. On the trial of the issue, the same rule of evidence must be observed as in trials at common law; and depositions cannot be read, if the witnesses can be had. Why should the law direct the issue to be tried by a Jury, if the same evidence was to be used as before a Court of Equity? The necessary inference is, that it was done 1o introduce the viva voce testimony of witnesses, who ought regularly to be brought before the Jury,  Depositions cannot be read but by special order of the Chancellor, even on the trial of issues directed by himself. But the invariable practice is, to procure the attendance of the witnesses themselves.
    It is laid down, said Mr. Hay, as an universal principle, that a new trial will never be granted, unless there be a certificate *from the Court, before which the trial was had. If it be a trial at law, at .Nisi Prins, in England, the certificate of the Judge is always obtained. If an issue out of Chancerjq the Judge must certify that he was dissatisfied with the verdict. In Southall v. M’Keand, the Court seems to have proceeded on this principle. So in Stanard v. Blayde’s executors,  it is expressly said that the certificate of the Judge must appear upon the record. Even the affidavits of the most respectable counsel could not be regarded. In the case of Standen v. Edwards,  the Chancellor would not grant a new trial in opposition to the certificate of the Judge, though strongly inclined to do it, and though he was perfectly satisfied that the verdict was against the justice of the case. Such is the respect shewn by Courts of Equity to verdicts of Juries.
    What reason can be assigned why a new trial should be granted in this case? The Jury were satisfied that John Paul the elder, was incapable of making a will; and the magistrates who heard the evidence concurred in that opinion. More witnesses were examined for the will, than against it; yet the Jury taking into view the whole ground, and weighing the credibility of the witnesses, decided against it. It would be subverting every principle of law for an appellate Court to undertake to grant a new trial, upon part of the evidence, when the Court who directed the issue, and heard the whole evidence, was satisfied with the verdict.
    Randolph, for the appellee,
    after giving a minute history of the rise and progress of this cause, contended that if the heirs of John Paul the elder, had been dissatisfied with the judgment of the District Court directing probate of the will, they ought to have appealed to this Court. Instead of which, they brought a suit in Cttancery in the County Court of Rockbridge, to set the will aside. The cause having been regularly proceeded on to the taking of depositions, and all of them having come in, an issue was made up on the question of de-visavit vel non, without any order
    *of Court to warrant it. Though the clerk certified on the first record that the depositions were not transcribed because the witnesses were examined in Court, yet it appears, upon the return of a certiorari, that the depositions of these very witnesses, (whose attendance was entered by the clerk,) constituted a part of the original record.
    The power of awarding new trials on issues out of Chancery, does not depend on the general doctrine of granting new trials at law: it is expressly given by the act of Assembly ; and in such cases Courts of Equity will grant new trials, when it is acknowledged they ought not to be allowed, had it been merely a case at law.  There were many reasons why a new trial ought to have been granted in this case: 1. The opposers of the will had two chances of setting it aside, first at law, and then in Chancery, whereas the person seeking to establish it had but one: 2. It was established by the District Court, on a full hearing of all the evidence; and 3. As the issue was to be tried in the same Court where the will had been condemned, there was not the same probability of a fair and impartial hearing.
    As to viva voce testimony, Mr. Randolph contended that, although it might be received, yet, if the witnesses were not present at the trial of the issue, their depositions taken in the Chancery cause might be read. He concluded by reviewing the evidence, and observing that it was impossible for any man who read the depositions, to doubt of the ability of John Paul to make a will: and the County Court having refused to grant a new trial, the Superior Court of Chancery, which sits to do what that Court ought to have done, was well warranted in granting it. He knew not for what purpose so many cases were cited by M-. Hay, as it was well known, that new trials were as often granted from evidence stated in the record, without the certificate of the Judge, as with it. There is no law requiring the certificate of the Judge; and even where he does certify, if the Court shall be satisfied that there is no ground for a new trial they will refuse it.
    *Hay, in reply.
    It was not necessary for the Court to direct an issue: the law only says that ‘ ‘an issue shall be made up;” which has been done. To say that the Chancellor had all the evidence before him, is a mere assumption of the fact; no such thing appears in the record; and, even if it did, he had no right to consider the depositions cf witnesses, when their viva voce testimony had been duly weighed by the Jury. An expression, in the opinion of the Court, in Ford v. Gardner and others, expressly applies to this case: “It does not appear what evidence was given to the Jury, and as no exception was filed at the trial, all must be presumed to have been legal and right.”
    The only point in this cause has already been settled in Ford v. Gardner and others; and rightly settled. As to the objection that the issue was to be tried in the Court of Rockbridge, where the will had been condemned; it has no weight, because the defendant had nothing to do but to have stated his reasons why a fair trial could not be had there, and to obtain a change of the venue.
    With respect to the merits, he would make but one remark. It is admitted that there was conflicting testimony; and that numbers were in favour of the competency of John Paul to make a- will, but it does not necessarily follow that the weight of evidence was in support of the will. The Jury found in favour of the smallest number, and the Court will never presume that they did wrong. On the contrary it may be safelj' affirmed that they did right. Juries invariably lean in favour of character, and in support of last wills. They regard the infirmities of human nature, and will never set aside a will, but upon evidence which ought to satisfy the whole world that the paper was not a will, either from the incom-petencj' of the testator, or from the fraudulent manner in which it was obtained.
    
      
      Issue Out of Chancery — Evidence—Effect of Verdict.— In Nease v. Capehart, 15 W. Va. 305, it is said: “In Carter v. Campbell, Gil. 159. It was held: ‘Tn a case proper for an issue the verdict is conclusive, where the evidence is conflicting.’ In Paul v. Paul, 2 Hen. & M. 525, it was held, that ‘the court, before whom an issue out of chancery was tried, haying been satisfied with the verdict of the jury, and haying overruled a motion for a new trial, to which opinion no exception was taken, the verdict ought forever to remain undisturbed.’ In Lee v. Boak, 11 Gratt. 182, it was held: ‘Where an issue is directed in a chancery cause, and a verdict is found to which no exception is taken, and a decree is rendered thereon, the facts found in the verdict must be regarded in the appellate court as the established facts of the case.’ To the same effect is Fitzhugh v. Fitzhugh, 11 Gratt. 210.”
      And in Joslyn v. State Bank, 86 Va. 289, 10 S. E. Rep. 166, it is said: “The issue in a case like the present, where a party interpleads and claims the property, is analogous to the ordinary issue out of chancery; and in such case, the law is well settled that the judgment of the court is conclusive, unless there be a bill of exceptions spreading the evidence in the record and showing the exact ground oi complaint. And in this respect there can be no difference between the case where there has been a verdict and the case where the whole matter of law and fact has been submitted to the court; for properly speaking the appeal is always from the judgment of the court and not from the verdict of the jury. Wickham & Goshorn v. Lewis, Martin & Co., 13 Gratt. 446. In each case there must be a bill of exceptions pointing out the alleged error, and a certificate of evidence showing what testimony was before the court or jury. Paul v. Paul, 2 Hen. & M. 525; Lee v. Boak, 11 Gratt. 182; Bart. Chy., 857, et seq. And in such cases, inasmuch as depositions cannot be regularly read even on the trial of an issue directed by the chancellor himself, unless by his special order, It cannot be assumed that such depositions were read, although they may appear as a part of the printed record of the chancery cause."
      See monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
       Before the passing- of this act, there was but one Superior Court of Chancery in Virginia-, which was denominated the “High Court of Chancery."' and had jurisdiction, in matters of eauity, over the whole State. By the above act the Counties were arranged into three Districts, and a Superior Court of Chancery, directed to be holden for each, one at. Richmond, one at Williamsburg, and another at Staunton. These are designated by the law establishing them, “Superior Courts of Chancery,” and the Judge of each exercises, within his jurisdiction, the same powers which were before exercised by the Judge of the High Court of Chancery. This distribution of the High Court of Chancery into Superior Courts of Chancery, accounts for their being denominated sometimes the one, and sometimes the other, according to the period when the-proceeding took place. — Note in Original Edition.
    
    
      
       See Rev. Code, v. 1, c. 92, p. 161, sect. 11.
    
    
      
       Ibid.
    
    
      
       3 Black. Com. 367.
    
    
      
       Amb. 210, Ld. Faulconburg v. Pierce, 21 Vin. 188.
    
    
      
       1 Wash. 336.
    
    
      
       2 Call. 369.
    
    
      
       1 Ves. jr. 134.
    
    
      
       Rev. Code, v. 1. c. 92. p. 161. sect. 11.
    
    
      
       2 Ves. 554, Stace v. Mabbot.
    
    
      
       1 Hen. & Munf. 84.
    
   ^Saturday, May 21. The Judges delivered their opinions.

JUDGE TUCKER

(after stating the case) proceeded as follows:

There is a great similitude between this case and that of Ford v. Gardner and others, (1 Hen. and Munf. 72.) There, a bill was brought by the heirs and distributees, suggesting a fraud in obtaining the will, which (as in this case) had been admitted to probate in the District Court, after being rejected by the County Court. An issue was directed to try the validity of the will, and the verdict found it to be invalid: the Court being divided on a motion to certify that the weight of evidence was against the verdict, the motion was overruled. A motion was then made, on the Chancery side, for a new trial, and was overruled; because the Justices of the Court, on the trial of the issue, were equally divided, as to the weight of evidence. In the present case no division of opinion appears; the majority, or, perhaps, the whole, of the Justices, concurring in refusing the new trial prayed for. In that case, as in this, the written evidence in the record certainly preponderated in favour of the will. But it was said by the Court, “It does not appear what evidence was given to the jury, and as no exception was filed at the trial, all must be presumed to have been legal and right.”

This is decisive of the present question. A trial at common law must regularly be had upon testimony viva voce. The testimony of a witness, examined in that manner before a Court and Jury, may differ widely from what it appears upon the face of a written deposition; and there may have been twenty witnesses examined on that occasion whose depositions do not appear in the record.

I therefore think the Chancellor erred in reversing -the decree of the County Court, and that we ought now to affirm it.

*JUDGE ROANE.

If I could be satisfied with the Chancellor, in this case, that the evidence contained in the record was the only evidence exhibited to the Jury on the trial of the issue, I should be of opinion with him that the verdict ought not to be conclusive. But I hold myself obliged to infer the contrary; not only (fori need lay no stress upon the clerk’s certificate upon the subject) because this is not shewn to the Court by the appellee’s counsel as it ought to have been, if he meant to avail himself of that ground in his motion for a new trial; but because it is the right and usual course in the trial of such issues to have recourse to viva voce testimony. So far from the answer and depositions in this case being properly inferred to be the only evidence exhibited on the trial of the issue, it ought rather to appear, on the other hand, that that testimony was actually made use of. In the case of Ford v. Gardner, this Court seemed to think that an order of the Chancery Court was necessary to let in the reading of the depositions and exhibits filed in the cause, and that other evidence, (the original will for example,) although no part of the Chancery record, should be presumed to have been before the Jury, as no exception for the want of it was taken. In that case, it was rightly contended by the appellant’s counsel that “it did not appear that the depositions transcribed into the record were all the evidence before the Jury.” I will.say the same in this case; and although on the face of this record the case seems rather strong for the will, I will not depart from this ground. I will not form a precedent, which, in a case of merely a slight preponderance, would equally turn the scale, and intrench upon the province of the Jury who are the best judges of credibility. I will rather presume, especially as a motion for a new trial was made and overruled, that sufficient testimony was exhibited to justify the verdict, and that the testimony in favour of the will was outweighed.

It is said in the decree that the County Court erred in directing a distribution of the estate without having set *aside the will. It is true that this 'is not done totidem verbis: but the County Court adjudge the paper purporting to be the will, &c. not to be his will, and that it is invalid, and then go on to direct a distribution. I think in substance, this is a decree vacating the will, and that the decree of the Superior Court of Chancery should be set aside, and that of the County Court affirmed.

JUDGE FEEMING.

There seem to be three points in this cause worthy of consideration : 1st. Whether, where a will has been admitted to record by a District Court, on an appeal from a County Court, in which the will had been rejected, the Chancery side of the County Court can "take cognizance of it, on a suggestion of fraud, and direct an issue to try the fact — will or no will? If so, 2dly. Whether, if the whole evidence be not spread upon the record, it must not be presumed that, on such trial, all had been legal and right? And 3dly. If no exception be taken, nor any ground of a motion for a new trial be stated in the record, an appellate Court of Chancery can with propriety, reverse the decree of the County Court, founded on the verdict, and direct another issue to try the same fact?

With respect to the first point, had it not been for the decision in the case of Ford v. Gardner, in this Court, at the October term, 1806, I should have been of opinion that the County Court could not have taken cognizance of the subject, after a decision in the District Court: because Courts of common law have a concurrent jurisdiction with Courts of Equity, to detect, suppress, relieve against, and punish fraud; and had there been any fraud prac-tised by John Paul, jun. in procuring the will in question, which was wholly written by the testator himself, redress might have been obtained by the appellants as well in a Court of Daw, as in a Court of Equity : but by this mode of proceeding, they take a double chance; first, in the Courts of Law, and then in a Court of Equity, where they have at length succeeded; though it appears clearly to me, from the evidence ^spread on the record, that the testator was fully competent to make the will in question: but there might have been for any thing that appears to the contrary, viva voce, testimony before the Jury at the trial of the issue, which may have given a different .complexion to the cause. And this brings me to the second point; and as it does not appear that the whole evidence adduced at that trial is spread upon the record, we are to presume, according to the case of Ford v. Gardner, that all has been legal and fight.

With respect to the third point; as there is no ground of the motion for a new trial, stated in the record, nor any exception taken to the opinion of the Court, but ■a mere right of appeal exercised, which was allowed on the usual terms of giving bond to prosecute it with effect, it •seems that the District Court erred, in considering the evidence exhibited to that Court, in the said record and proceedings, as the only evidence in the cause; and in reversing the decree, and in ordering another issue to try the same fact. I therefore concur in opinion that the decree of the District Court be reversed; and that ■of the County Court affirmed.

By the whole Court, (absent JUDGE LYONS,) the decree of the Superior Court of Chancery reversed, and that of the ■County Court affirmed. 
      
       1 Henlng & Munf. 72.
     
      The principal case is cited in Shearman v. Christian, 6 Rand. 57
     