
    Doe against Roe.
    On an affidavit of newly discovered evidence, a new trial'was granted o.n an issue out of the court of chancery.
    A paper purporting to be the record of a deed, and not duly acknowledged, is. a nullity, and not admissible in evidence, either as a record, or as a copy of a deed.
    ' This was a feigned issue, directed out of the court of chancery, and tried before Mr. Justice Kent, at the circuit in New York, on the '24th July, 1799. The issue was, “ whether a certain deed alleged by the said Richard Roe, to have been made, executed, and delivered by one Cornelius Cozine, the. elder, deceased, in his lifetime, whereby he did give "and grant, bargain, sell, release, and convey unto his two sons, Cornelius Cozine, the younger, and. Balm Johnson Cozine, and their heirs and assigns, all that certain tract. of land, <fcc. at Bloomingdale, was made, executed, and delivered, or not.”
    On the trial, the following facts appeared: Cornelius Cozine, the elder was in possession, and reputed to be the owner, of the farm in question. Some years before his death, he removed to the city of New York, where he chiefly resided, until his death, in 1765. When he *removed to the city, his wife and daughter, and his [*403] two sons above named, remained on the farm which he occasionally visited. His wife died during the American war, and his two sons, Cornelius and Balm, after the removal of their father, continued to reside on the farm, and to cultivate it as their own, until his death.
    One of the witnesses testified, that he had heard Cornelius Cozine, the elder, declare that the farm belonged to his said sons, and that he was sorry that they had not made a better use of it. Cornelius Cozine, the younger, died in 1773, and Balm Johnson Cozine died during the American war, and they both continued in possession .of the farm until their deaths respectively. In 1771, B. J. Cozine built a dwelling house on the farmland about the year 1773, he caused a barn to be built upon it.
    The counsel for the defendant then offered in evidence, the original record of a deed, purporting to bear date the 23d April, 1759, and to have been duly executed by Cornelius Cozine,, the elder, to his two sons above mentioned, by which, in consideration of one 10007 he conveyed the farm in question to them, as joint tenants in fee simple. The deed appeared to have been recorded in the office of the clerk of the city and county of New York, on the application of Cornelius Cozine, of Bloomingdale, on the 10th December, 1761, in consequence of the following proof and certificate endorsed thereon, to wit:
    “ City of New York, ss. Thomas Clement of the city of New York, scrivener, malceth oath, that he wrote the within instrument as a clerk, and was present, and saw the within named Cornelius Cozine, sen. sign, seal, and deliver the within instrument as his act and deed, for the uses therein mentioned, and that he saw at the. same time, the within named Nathaniel Holmes and Henry Green sign their names as witnesses thereto, in the presence of the said Cornelius Cozine, and also Of this deponent, and further this deponent saith not.
    
      “ Thomas Clement.
    
    
      “ Sworn, 9th December, 1761, before me,;
    “ William Smith."
    
    [*404] *“Be it remembered, that, on the 9th day of December, in the year of our Lord 1761, personally appeared before me, William Smith, one of his majesty’s council for the province of New York, the above named Thomas Clement, of the city of New York, scrivener, and made the affidavit, above mentioned ; and I, having perused the within instrument, and finding therein no erasures or interlineations, do allow the same to be recorded, and to take effect, as the law requires.
    “ William Smith."
    
    Thé original deed was not produced, and the defendant’s counsel said, that they could give no particular account of it; and the judge refused to let the above record be read to the jury, in evidence of the deed alleged to have been made, executed, and delivered by Cornelius Cozine, the elder, to his two sons above named, unless some proof could be given of the loss' of the original deed : and a verdict was thereupon found for the plaintiff.
    On a case made, containing the above facts, and also on affidavits of the discovery of new and material evidence since the trial, a motion was now made to set aside the verdict, and for a new trial.
    The affidavits stated, that one Forman, the father of the deponent, had in his possession, before the late war, several papers belonging to Cornelius Cozine, and Balm J. Cozine, and among them a deed, said to be from Cornelius Cozine, the elder, to his two sons, for the farm at Bloomingdale, which were lodged with the said Forman, for safe keeping, and were kept in a wooden box; that a number of the papers were destroyed, by the rats having eaten through the box, and that three or four years ago, the top of the box was off; that having searched the box the day before, and made diligent inquiry in the'family, no papers belonging to the Cozines could be found.
    
      Hamilton, Harison and Ogilvie, for the plaintiff.
    
      Pendleton and Troup, for the defendant.
   Per Curiam.

(Absente, the Chief Justice.) As it is suggested that further light can be thrown on the case, and *new evidence appears to have been discovered, [*405] we think, without expressing any opinion on the merits of the case, that a new trial ought to be granted, on the payment of costs. We consider the paper offered at the trial and rejected, as a nullity, and wholly inadmissible; it is neither a record, nor a copy of a deed.

New trial granted. 
      
      
         In the case of Doe v. Roe, 1 Cowen, 216, 217, the court say;—“Applications for a new trial upon, these feigned issues, have, in several instances, been made to this court, without objection: as appears from the cases cited by the plaintiff’s counsel; (Doe v. Roe, principal ease; Same v. Same, sup. 25; Den v. Fen, 1 Caines’ R. 487 ;) but they are also entertained in the court of chancery; and the statute seems tó contemplate the latter court, as the proper tribunal for this purpose. Without saying, therefore, whether we have, power to hear and determine the motion for a new trial in this cause, we order it to be stricken from the calendar, on the ground, that this is a matter more properly cognizable in the court of chancery.” But a motion for a new trial upon an issue directed by a court of equity, must now be made in that court, as well where the point relates to the admissibility of evidence, as on other occasions j, Apthorpe v. Comstock, cited infra; Bowker v. Nixon, 6 Taunt. 444; 4 Chit. Geni. Prac; 82; Newland’s Ch. Pr. 179; and the reason of this is, that the issue is ordered to satisfy the conscience of the chancellor. Lord Faulconbridge v. Pierce, Ambl., 210, and vide 9 Ves. 165; Carstairs v. Stein, 2 Rosl. R. 178; Fowkes v. Chadd, 2 Dickens, 576; Ex parte Kensington, Cooper, 96. With regard to the principles upon which courts of equity, will act in granting new trials, MPCoun, vice chancellor, observes in the case of - v. -, 1 Edwards’. Ch. R. 18 ; “ It is well understood that the same rules which formerly governed courts of law, in granting new trials, upon the ground of testimony improperly admitted or rejected have never been adopted, or adhered to by the court of chancery. Even courts of law have latterly undertaken to judge for themselves, of the materiality of the evidence found to have been improperly .admitted, or rejected; and where they have been satisfied that no injustice has been done, and the verdict would have been the same, with or without such evidence, they have refused to grant a new trial. Lord Teynham v. Tyler, 6 Bing. 56. In this court, the object of a feigned issue is to satisfy the mind of the equity ‘ judge upon matters of fact; and the- object is attained, when the conscience-of the judge is satisfied that at the trial, justice has, upon the- whole, bee» substantially done. This is the principle laid down in Collins v. Hare, 1 Dow’s Rep. N. S. 139 ; S. C. 2 Bligh’s Rep. N. S. 106. In Barker v. Ray, 2 Russell, 63, Lord Eldon says, that this court in granting or refusing, new trials, proceeds upon very different principles from those óf a court of law, and that it has been, ruled over and over again, that if on a trial of an issue, a judge reject evidence which ought- to have been received, or receive evidence which ought to have been rejected, though in that case, a court of law would grant a new trial, yet if this court is, satisfied the verdict ought not to have been different, it will not grant a new trial, merely upon such grounds. In Bootle v. Blundell, 19 Ves. 503, the same principle is stated ; and also, in Hampson v. Hampson, 3 Ves. & B. 41. So in Savage v. Carroll, 2 Ball & Beatty, 444, where it was insisted the verdict had not been supported by the evidence, Lord Manners refused to set it aside, acting upon the principle, that from the whole case, there was sufficient to show it was substantially right. I must act upon the same principle here, and must therefore deny the defendant a new trial.” See also upon the general principle, Head v. Head, 1 Sim. & Stu, 150. Turn. & Russ. 42, S. C. on appeal. Barker v. Ray, 2 Russ. 63. Apthorpe v. Comstock, 2 Paige, 482, 487, 488.
     
      
      
         Old note, The original,suit is still pending in the court of chancery.”
     