Doe v. Roe — 1 Cow. 216

Majority

p. 216

John Doe against Richard Roe.

Headnote

A motion SSr a new trial, on a feigned issue, to. try the question of adultery, ought to be made to the court of chancery.

Feigned issue, ordered by the Chancellor to try the question of adultery, pursuant to the 2d section of the act Concerning divorces, (2 R. L. 197.) A verdict, at the last Herkimer Circuit, having been found for the defendant,, a case had been made for a new trial, and the cause placed on the calendar of the present term. And now,

p. 217

É. Cowen, for the defendant,

moved to strike the same from the calendar, upon the ground that the application should have been made to the Court of Chancery. He said, that in England the practice is settled, and the application must be addressed to the Court of Chancery. (Newland’s Ch. Pr. Albany ed. 179.) There is a peculiar fitness in this course ; because the verdict must be such as will satisfy the conscience of the Chancellor,^[1] who proceeds by different rules, in granting a new trial, from those which govern in a Court of law.^[2] In chancery, it is granted, or refused, on comparing the report of the Circuit Judge, with the record of the suit in Equity ;^[3] an advantage of which a Court of law cannot avail themselves. Besides, the 2d section of the statute, under which this issue was directed, declares that this application may be made to the Chancellor.

M. Hoffman, contra,

said that applications for a new trial, on feigned issues from Chancery, had frequently been made to this Court, and though opposed by eminent counsel, yet tire present objection had never before been heard of. As instances, he referred to Doe v. Roe, (1 John. Cas. 402.) The Same v. The Same, (id. 25.) The latter, he said, was this very case ; and in Den v. Fen, ( 1 Caines’ Rep. 487 ,) the Court say, “ If, in a feigned issue from the Court of Chancery, an inquest be improperly taken, relief must be sought in this Court.” True, the practice in England is as stated on the other side, but it is sufficient" for us, that our own has long been settled otherwise. The provision of the statute is not inconsistent with the decisions cited* It is, that the “ Chancellor may aWard a new trial of the issue, if he deems it necessary.” It so far alters the old practice, as to give him a concurrent right With this Court, in awarding a new trial; but plainly implies, by this provision being inserted, that the former practice was different, and still leaves it to be pursued, in the election of the party applying.

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

p. 218

plaintiff’s counsel; and one of those applications was upo® a fejgne(j jssue to tl.y fact 0f adultery : but they are also entertained in the Court of Chancery ; and the statute seem,s *-° 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, qn the ground, that this is á matter more properly cognizable in the Court of Chancery.

Rule accordingly.