case baker versus heart July SC Ves the court for the more solemn  determination in some case direct a second trial without set aside the first  verdict for otherwise the defendant will lose the benefit of urge the first  verdict in his favour the cause be hear before Lord chancellor in may and  issue be then direct it come on now upon the equity reserve and upon a  application for a new trial atkins Lord chancellor upon the second issue  before Lord chief justice will the jury find that William baker the father of  the plaintiff be not the heir of admiral hosier but it have be certify to I by  the chief justice that the find of the jury depend upon the verdict give on  the first issue the application now be not to set aside the verdict but for  another trial vide attorney general v Montgomery atk where it be a matter of  inheritance vide Stace v mabbot Ves the court without set aside the first  verdict for the more solemn determination in some case direct a second trial  and if the court direct such trial without set aside the former verdict then  the first may be give in evidence and will have its weight with the jury and  therefore it be a very material difference to the party because if I be to  direct a new trial on my set aside the first verdict the defendant will lose  the benefit of urge the first verdict in his favour at another trial in many  case where it be a matter of inheritance and not actual conclusive the court  have not direct a new trial but where the inheritance will be absolute bind  the court have grant a new trial in the present case it be insist the  inheritance will be bind and say in answer to that the plaintiff may try it  over again in ejectment if so where be the prejudice to the defendant if the  court shall direct it to be try again for the leave it to the plaintiff to  bring a ejectment will not quiet the question because the defendant will be  entitle to bring a bill here for a perpetual injunction in the case of  Atcherley versus Vernon Lord chancellor king grant a injunction and at the  hear of the cause make it perpetual the court consider the feefarm rend devise  by the will of Mr Vernon the chancery counsel as part of the trust estate he  decree accord and it be upon this ground the court grant a perpetual  injunction because trust be the proper jurisdiction of this court and it will  be trip up the heel of their jurisdiction if the party be suffer to proceed at  law and by that mean overturn the decree of this court in the case upon sir  Thomas Colbys will the court have decree a partition of the land c so that  bring a ejectment atkins there be equal in the consequence defeat the decree  of this court if the plaintiff shall bring a ejectment and shall succeed in it  though a direction have be give here for a receiver and to account and pay the  profit he may also bring a action for those very mesne profit c here it be a  question of legitimacy but then it be a legitimacy set up after the death of  the father and no pretence of cohabitation and all the fact speak contrary to  cohabitation and to a marriage for she suffer herself to be arrest in the name  of Pritchard lie in a gaol for some time and be clear at last by the insolvent  debtor act this circumstance though not conclusive yet be material against the  marriage the daughter likewise be place out by the parish of saint Giles as a  bastard child and after be use by a father in this manner it be very  extraordinary if she have real be legitimate that she do not compel the father  to maintain her this question of legitimacy be very different from that where  there have be a atkins er p cohabitation as be the case of Stapleton versus  Stapleton atk S c and no doubt at all in that case but there find be a  marriage the only question be as to the time whether they be marry before the  birth of the old son the verdict obtain in a former trial before Lord chief  justice eyres be give in evidence upon this trial before Lord chief justice  will who certify it have considerable weight with the jury and if there be any  thing that impeach the evidence on which the first verdict be give it will be  very material for the verdict before Lord chief justice eyres turn on a  clergyman evidence one Philips who swear he Christian the child as the child  of admiral hosier and his wife but on his deathbed confess in great agony that  he be suborn to give this evidence on the defendant mother give he a bind of  pound to swear this fact where a verdict be give in evidence it be necessary  for the person who give it in evidence to show on what title it be obtain and  on the other side they be at liberty to show on what kind of proof it be give  the defendant mrs heart be at the time of the trial before Lord chief justice  eyres a infant but if it be show that the mother act as guardian as guardian  for her and be guilty of ill practice atkins in the prosecution of the suit to  obtain the verdict act of the infant herself that malepractice may be give in  such verdict may stand unalterable and not liable to be impeach and mankind  will be in a very bad situation but this be not the case for the defendant  heart be marry at the time and her husband as seize in her right prosecute the  suit and be a coobligor in the bind to Philips as a reward to he for swear in  the cause if the circumstance of fillip perjury have appear to the court of  common plea it must have have great weight the defendant husband be seize in  her right when that ejectment be bring and be guilty of malepractice this may  certain have be give in evidence this take off the force of the objection that  there be two concurrent verdict for the defendant another objection raise for  the plaintiff be that they be not permit to give in evidence the deposition of  one woolnoth if there be a difference in the spell of Woolnoths name that take  away the presumption of the identity of the person at the former trial and the  court be right in refuse it unless the party produce it will show he to be the  same person but Woolnoths be so lose a evidence that I shall not be inclinable  to grant a new trial on such a ingredient only another objection take by the  defendant be that there have be a considerable delay in the cause and that  nine or ten witness examine at the former trial in ken be since dead that give  material evidence for the defendant heart be mother who call herself the wife  of admiral hosier as to that the plaintiff bring a new ejectment soon after  and bad judgement by default and the defendant by collusion prevail on the  tenant to attorn as to the death of witness they be mortal and no person can  keep they alive but this circumstance have weight with the jury in the last  trial and they consider the evidence then give for the defendant with the  great benignity and indulgence and to be sure be a material ingredient for a  court and jury to take into their consideration where there be a great length  of time between the two trial atkins the marriage be extreme improbable the  licence be take out by the woman the intend husband in it call Francis hosier  mariner at the same time he be a captain of a first rate man of war it be say  in excuse he have a mind to conceal his marriage but it be much more likely  she have it fill up in this manner to conceal it from the whole world in order  to set up a marriage after his death and at this rate any man may be marry to  a common woman in the ecclesiastical court the defendant mother be determine  not to be the wife of admiral hosier upon a contest there relate to the right  of administration to his personal estate and yet upon a trial at law relate to  the real estate be find to be his wife it be very much to be lament that there  shall be such different determination in two concurrent jurisdiction but  though it be a great absurdity there be no way to make they uniform I know but  one case where this variation of judgement have happen and that be the case of  Maxwell and Lord Montague there a testator atkins er p be determine to be  compos chin upon a suit in the ecclesiastical court and that sentence be  affirm in the court of delegate afterward on a trial at law in relation to the  real estate devise by the will the testator be find non compos and then a  application be make to the house of lord by petition to reverse the sentence  in the court of delegate in order to make the determination uniform but the  house of lord dismiss the petition because the sentence of the delegate be  decisive and no appeal lie from it I be of opinion on the plaintiff pay the  cost to the defendant that he shall be at liberty to lie all these  circumstance before a jury but the question will be how it shall be try I will  direct a trial at bar in the court of king bench provide the party pray a  trial at bar will consent that if he prevail he will be content with nisi  prius cost and on those term I be of opinion this matter shall be try again  and Lord Hardwicke give direction accord Reg lib a fol