
    LANCASTER’S ADMINISTRATORS vs. WARD AND BOSLY.
    Practice in equity as to issues of fact
    
      In equity, The bill stated that the deceased entered into an article of agreement with the defendant Ward respecting the sale of two tracts of land of 640 acres each; the property of the deceased, on blooming grove creek, for which the defendant was to give twenty five cents an acre; that the defendant, was to examine and see if the land could be found, and that the title was good; and if the boundaries could not be ascertained the contract was to be void. That Ward did not examine whether the land could be found, but intending to deceive the deceased, went to him and stated, that the land was lost by a better claim of M’Cullocks; that he had previously sold it and would be obliged to pay seventy five cents an acre for it; and that the deceased must pay him that sum an acre for the land, or he would sue him. Upon this representation Lancaster the deceased, gave his note for $860 being the price of the land at seventy five cents an acre, deducting, thereout $100 which Ward, owed the deceased, as part of the purchase money for the same land. Upon entering into this new contract the original agreement was destroyed. The defendant Ward owed Bosly who took the note of the deceased in payment. It was assigned, but previous to the assignment, the deceased went to Ward and told him, that he had discovered he was imposed on; that he had never examined whether the land was lost, that he had a title to it, tendered him a deed for it and required of him that the last agreement should be rescinded. These transactions were known to Bosly before the assignment. Suit at law was brought on the note judgment recovered, and this bill filed for an injunction which had been dissolved.
    Ward in his answer stated that he had bought of Lancaster, the two tracts mentioned in the bill, and took an obligation for a conveyance, with a general warranty; that he did not recollect the precise sum, but believed it to be something more than twenty live cents an acre; says that he sold this land to two persons, who received it, and found by old lines that it was lost; upon which he refused to complete the contract. He went to Lancaster the deceased, and' informed him of these circumstances, & required him to indemnify him by giving other lands. But he refused, stating that he had rather give his bond for money, which he accordingly did as stated in the bill. He further stated that previous to this purchase he had bought of the deceased three 610 acre tracts, confiding in his representation as to the quality, which turned out to be much inferior to what he represented, and on that account, the deceased agreed to let the two tracts on blooming grove creek go at a lower price, than he otherwise would have done. The answer as usual contained a general denial of fraud, &c.
    Replication to this answer, and the following issues of fact:
    First whether the bill single for $860, exhibited in the complainants bill was procured from John Lancaster the deceased, by the defendant Ward by fraud, misrepresentation, or undue means, as stated in the complainants bill.
    Second, whether the defendant Ward paid to the deceased, any consideration for the said bill single, and if any what consideration he paid and where.
    A jury having been impanelled to try these issues, the plaintiffs bill was substantiated by proof of the facts.
    Campbell and Wharton, for plaintiff,
    It is evident there was no consideration given for the note of $860, upon which the judgment was obtained. The gist of our complaint is misrepresentation. It is immaterial whether the land was lost. We have proved that the defendant, nor any person for him, did ascertain whether it was lost or not; and for this the contract is voidable. It is true the answer has been read, but that was with a view to ascertain the points in dispute, it is not evidence. The bill single would be conclusive in a court of law, but it is not so here, where it is impeached for fraud, and this we have proved. Let this question be examined as it may, Lancaster the deceased did hot receive any consideration for the note. Upon the defendants own shewing there was no other consideration than his disappointment in making a speculation, in which Lancaster had no concern. If Ward had sold the land for seventy five cents an acre, he might have purchased other land with the money, without troubling Lancaster, 2 Hay 290, was relied on.
    Stewart, White and Grundy for the defendants.
    The answer denies the material facts stated in the bill. It is evidence, and requires two witnesses to overturn it. The plaintiff produced but one witness as to the misrepresentation.
    
    
      Taking the answer as true, this was a fair transaction; there was a compromise, which is a good consideration. The answer is evidence, where it is responsive to the bill.
    
    Suppose a man gives his deed or bond, and the bill charges want of consideration; is the deed to stand for nothing in a court of equity? At law it would be conclusive, and to say it shall have no effect in equity, would be too violent a change in the law of evidence. Though the deed is not conclusive here, the onus probandi must lie on the plaintiff. As to the consideration being sufficient, 1 Bro. C. C. 52. was cited.
    
      
       2 Vez. jr. 243. 2 Hay. 102.
      
    
    
      
       See 2 Hen. and Mun. 395. 2 Caine's C. E. 70. 1 Call. 224. Hardin, 530; 544.
    
   Humphreys j.

In England I understand the practice in chancery to be, that the court examines the testimony taken in the cause, and if doubtful refers it to a jury, on an issue, to ascertain its truth, but if the evidence is satisfactory to the court, no reference is made to a jury. Where the answer is read, the rule of law is, that as to such parts of the answer as are responsive to the bill, there must be two witnesses to do away its effect; or at least one witness aided by circumstances.

Our practice differs from this in some respects. Issues are made up by agreement of the parties, or by a judge of this court on application of either party before the cause is opened, or heard at all. It is most usual to do it at the rules, immediately after the replication is filed. The answer has been read, and as there are circumstances, beside the testimony of one witness, the jury will give them such credit as they may think they deserve.

Overton j.

Concurred with the opinion delivered so far as it went. The defendant Ward, in his answer says, that part of the consideration for the note was a previous misrepresentation by Lancaster in selling lands which proved to be of inferior quality.—The jury cannot take this into consideration; because it neither relates to the issues to be tried by them; nor is it known at this time to be material in any other point of view, there being no statement in the answer, that Lancaster was liable on his contract for any deficiency in the quality of the land, previously sold. Many of the arguments used by the counsel, more properly apply to the merits of the cause, than the trial of these issues; and therefore need not be taken into consideration at all by the jury.  