brown case simeon ash and other appellant mary ash widow respondent that march  under what circumstance a new trial after the trial of a second issue may be  grant in the year Jeremiah ash then a apprentice to a winecooper in London  have a child by the respondent who be a servantmaid in the same family this  child he have Christian by the name of palatia private maintain her during her  infancy and when of proper age place her out as a apprentice to a mantuamaker  when ash be out of his time he set up his trade in partnership with the  appellant Bodicoate and in a few year be repute to be a rich man but he  constant live a bachelor and though he for some part of the time assist the  respondent with money to set up a public house in order to get her livelihood  yet he never cohabit with her or treat her as his wife and on account of her  extravagance and ill conduct he for the last seven year of his life take no  notice of her nor afford her any kind of assistance on the that of January the  say Jeremiah ash make his will and thereby give to his say natural daughter by  the name of palatia goody daughter of mary goody three several legacy of pound  pound and pound he also give to trustee pound to be lie out in the purchase of  a annuity for her life and for her sole use and benefit and appoint the  appellant ash and grout his brother and sister executor of his will in  Michaelmas term the respondent exhibit her original bill in chancery against  the appellant to have her share of the testator personal estate and also her  widow chamber allege that she be his lawful wife the defendant by their answer  have positive deny this allegation and the whole of the brown plaintiff demand  depend on the truth of this single fact it be agree by the party and their  respective clerk in court and atorneys that in order to avoid expense there  shall be a trial at law in the court of common plea upon a feign issue to try  whether the plaintiff be the wife of the say Jeremiah ash or have ever be  lawful marry to he accord a issue be prepare and on the d of June it come on  to be try before the Lord chief justice of the court of common plea at  guildhall London when the jury upon full evidence find a verdict for the  defendant videlicet that the respondent be not the wife of the say Jeremiah  ash or ever lawful marry to he under this verdict the respondent acquiesce for  some time but her daughter the say palatia goody die before the say legacy of  pound be lie out in the purchase of a annuity she as executrix of her say  daughter exhibit her bill against the appellant the executor in the court of  exchequer in order to have that legacy pay to her and have obtain a decree for  the same it be pay to her accord in June the respondent file a supplemental  bill in chancery demand a orphanage part of the testator estate as executrix  of her daughter upon the suggestion of her be his legitimate issue this cause  be hear at the roll on the that of July when notwithstanding the former trial  and verdict remain unimpeached his honour be please to direct that the  defendant the executor shall proceed to a trial at law in the court of brown  er p common plea in London on a feign issue to try whether the plaintiff be  marry to the say Jeremiah ash or not this second issue be accord try before  the Lord chief justice king on the that of December follow when the substance  of the evidence on the part of the executor be that the say Jeremiah ash live  twelve year after the expiration of his apprenticeship in London as a single  man in great credit and reputation and that during all that time the  respondent be in a very poor and low condition That when she complain of her  poverty to the appellant Bodicoate and one Mr jervas who be her own witness  entreat they to solicit Mr ash to give her something to supply her necessity  and pretend to be his wife before God they offer her to compel he to maintain  her as his wife if she be real marry to he and can tell they when where and by  who but that she be not then able so to do or to make out any such thing That  Mr ash die and there be in the register of Whitechapel a marriage enter  between one Jeremiah Perkins and mary smith the respondent after his death  attempt to bribe the clerk of that church to change the name of Perkins into  ash and that of smith into goody but fail therein she bring witness at this  trial to make her marriage agree with the register as it stand and endeavour  to prove that to be the true marriage brown between her and Jeremiah ash  though enter by different name whereas the appellant produce the very mary  smith who be then marry to Jeremiah Perkins and the original certificate of  that marriage And that a letter be give in evidence by the respondent at the  trial and make a exhibit in the court of chancery as write by Mr ash to her in  which the word dear wife at the beginning and the word your affectionate  husband at the end of it appear to be write with different ink and of a  different handwriting from the body of the letter and to be a mere forgery but  notwithstanding this evidence the jury think proper to find a verdict for the  respondent on the that of march the cause be hear upon the equity reserve when  the defendant pursuant to leave in that behalf obtain move for a new trial  which his honour be please to deny and decree that the defendant shall account  for the personal estate of the testator and that the plaintiff shall have her  customary share thereof together with her widow chamber and the defendant have  appeal to the Lord chancellor Cowper his lordship on the that of June be  please to confirm the decree the defendant therefore appeal from both the  decree insist I Jekyll f page that there be no footstep of the pretend  marriage either by publication of banns licence register or certificate but  that to supply this defect the respondent be prove guilty of a attempt to  bribe the clerk of Whitechapel to falsify the register there and afterward  endeavour to prove that to be her marriage though enter by fictitious name the  contrary of which be full prove that the respondent never cohabit with  Jeremiah ash as his wife nor ever pretend to verify her pretend marriage in  his lifetime notwithstanding her poverty and his flourish condition that he  have for seven year before his death entire discard her and never allow her  any subsistence that by his will make but a short time before his death he  have treat and provide for the respondent daughter as a illegitimate child and  thereby disown the pretend marriage and the respondent as her executrix have  so far agree thereto as to procure a decree in the court of exchequer for the  legacy give her by the name of palatia goody daughter of mary goody and have  receive the same accord that there be no ground to direct a second trial the  first be by consent of party and the verdict to the satisfaction of the judge  who try the cause or if a second trial be well direct yet the second verdict  ought not to receive great credit than the first and therefore it be hope that  there be good cause to reverse the decree which be find upon a supposition of  the pretend marriage or to direct a new trial upon the same or such other  issue as shall be think proper on the part of the respondent it be urge S  Cowper r Raymond that the present appeal be mere groundless vexatious and for  delay and accord to the former practice of the appellant for that in a brown  suit in the exchequer mention in the appeal after they have contest the legacy  of pound give to the respondent by her daughter will and have make her spend  as much as it be worth to get a decree for the payment of it they appeal from  that decree to the house and afterward withdraw the same by the respondent  consent and not only pay her the legacy but brown er p take a discharge for  the same by her name of mary ash that as to the pretence of there be verdict  against verdict a verdict obtain extrajudicial and as the respondent have  reason to think by collusion can never be a foundation for a court of justice  to make any decree upon nor can any court take notice thereof or in case the  respondent have obtain a verdict upon the first trial have make any decree in  her favour and therefore it will be very hard that she shall be prejudice by a  verdict which she can have have no benefit of and that consider the oppression  of the appellant and the poverty and low condition of the respondent it be  hope that the decree will be affirm with exemplary cost or at least so far  amend as to lie the whole cost both in law and equity and of this appeal upon  the appellant share of the testator estate they be residuary legatee as well  as executor and have choose much rather to waste the asset in law than to do  justice to the respondent thereout by pay what be so just due to her but after  hear counsel on this appeal the question be put whether the decree shall be  reverse which be resolve in the affirmative it be order and adjudge that the  say decree shall be so far reverse as that a further trial shall he have in  the cause on the same issue and that such trial shall be at the bar of the  court of common plea some time in the then next term and that the appellant in  order to enable the respondent to prepare for such trial shall pay or cause to  be pay to her the sum of pound to be deduct out of the cost in case a verdict  shall be find for the respondent and the court of chancery be direct to  proceed upon the equity reserve after such trial have or default of such trial  and to give such further direction as shall be just in order to the say trial  in pursuance of this order a new trial be have on the that of June in the  court of common plea by a special jury when a verdict be find for the  defendant against the marriage register lib a p whereupon the plaintiff move  the court for a new trial which be refuse she afterward petition the house for  a new trial but this petition be reject no counsel appear in support of it  jour vol p the defendant therefore set down the cause upon the equity reserve  and on the that of may it be hear at the roll when counsel appear for the  defendant but none for the plaintiff although she be duly serve with the order  for set the cause down as by affidavit appear his honour be please to order  that the plaintiff bill shall be dismiss and that the book of account paper  and write which have be bring before the master shall be deliver back to the  defendant but in regard the plaintiff be admit in form poor man such  dismission be to be without payment of any cost in respect thereof jour vol p  viscountess fauconberg v Evans brown PC er report date brown case viscountess  dowager fauconberg appellant thomas crying Euhan respondent that February on a  motion for a new trial of a issue direct by the court of chancery several  affidavit be offer to be read in addition to the evidence give for the  defendant on the trial of the issue but the court will not permit these  affidavit to be read and the judge have certify his satisfaction with the  verdict the motion be refuse on a appeal the house of lord after debate suffer  the affidavit to be read but dismiss the appeal and affirm the decree  affidavit in support of evidence give on the trial of a issue direct by the  court of chancery allow to be read upon a appeal from the decree of that court  the appellant have apply to the respondent to take a house of his which about  two year before be new build situate in new bind street and have view the same  and agree to take it by article date the that of June the appellant agree to  accept a lease of the say house for seven year from Michaelmas then next at  the rend of pound per and afterward the respondent by indenture date the that  of September brown er p demise the say house to the appellant together with  some furniture household stuff picture and other thing mention in a schedule  annex for seven year commence from the feastday of saint Michael the Archangel  then next ensue under the rend of pound per and Payable quarterly and by  virtue of this lease the appellant enter and enjoy the appellant afterward by  deed under her hand and seal date the d of October agree to pay the respondent  pound S per and for seven year for the use of other furniture provide by he  for her and use in the same house and have soon after occasion for more  furniture for the house the appellant by another deed under her hand and seal  date the that of November agree to pay to the respondent pound S per and for  seven year for other furniture which be also provide by the respondent and use  in the say house by the appellant but in Hilary term the appellant exhibit her  bill in the court of chancery against the respondent pray that she may be  discharge from the say article lease and agreement and that the lease and  counterpart thereof may be deliver up and cancel under pretence that the house  be not substantial build and that it be hazardous for the appellant to live  therein in windy weather to this bill the respondent put in his answer and  insist that the house be strong and substantial build and that the article  agreement and counterpart of the lease be fair and deliberate enter into  without any manner of fraud or imposition whatsoever brown the cause be at  issue diverse master builder bricklayer and carpenter be examine as witness on  the part of the respondent who prove that the house be substantial build and  with good and sound material and on the that of June the cause be hear before  the master of the roll when his honour be about to dismiss the bill but at the  request of the appellant be please to order that the party shall proceed to a  trial at law the sit after the then next term in the court of king bench on  this issue videlicet whether the house in question be build in a substantial  manner fit for a tenant to live in and the jury who be to try the issue be  direct to have a view and after the trial have either party be at liberty to  resort back to the court on the equity reserve accord on the d of December  follow the issue be try before the Lord chief justice Raymond when the jury  after a long examination of many witness bring in their verdict for the  defendant that the say house be build in a substantial manner fit for a tenant  to live in the appellant afterward apply to the Lord chancellor for a new  trial who direct her to move the court of king bench for such trial which be  accord do in Hilary term but the court refuse to grant any new trial be  satisfy with the verdict on the saint of February follow the cause come on to  be hear upon the equity reserve before the master of the roll who upon debate  of the matter by counsel on each side and hear the order read which be make  upon the former hear and also the postea or verdict be please to order that  the appellant bill shall stand absolute dismiss with cost both at law and in  the court of chancery the appellant be dissatisfy with this decree prefer her  petition and appeal to the Lord chancellor king and the cause be reheard  before his lordship on the that of April he be please to dismiss the petition  of appeal and to affirm the decree the appellant therefore appeal from both  decree contend p York n fazakerley that it appear by the proof in the cause  before the first hear that the respondent have very much impose upon the  appellant in assure her that the house be substantial and complete build and  finish whereas it be so slight and unskilful build that it be not likely to  stand to the end of the appellant lease nor can she dwell therein without the  hazard of her life as well as the life of the rest of her family and therefore  no issue ought to have be direct but the appellant ought to have be relieve on  the hear by have the lease and counterpart deliver up and decree the  respondent to pay her cost but if it have be necessary for the information of  the court to have direct such a issue yet inasmuch as the strength of the  evidence give upon the trial of it touch the dangerous state and condition of  the house be on the brown appellant side beside brown er p the additional  affidavit offer by her counsel on the motion for a new trial and the great  reason to believe that the jury be influence the appellant ought not to be  conclude by the verdict but a new trial shall have be direct by a special jury  and before such new trial have the appellant bill ought not to have be dismiss  on the other side it be say c Talbot t Lutwyche that the court of chancery  have constant use and have a undoubted right to direct a issue at law to  inform the conscience of that court in matter of fact which from the evidence  before they appear doubtful that in this case the evidence before the hear be  very strong in favour of the respondent and that the issue be direct at the  earnest entreaty of the appellant counsel and be the only thing which prevent  his honour the master of the roll from dismiss the bill that the issue have be  accord try and find for the respondent to the satisfaction of the Lord chief  justice who try it and upon who report of that trial the court of king bench  think proper to refuse a new trial and as to the allegation that the jury be  influence it be deny by every one of they upon oath it be therefore hope that  the decree and proceed of the court of chancery will appear to be find in  justice and equity and consequent be affirm and the appeal dismiss with cost  at the hear of this appeal it be propose on the part of the appellant to read  certain affidavit of person skill in building touch the house in question  which be offer to the master of the roll on apply for leave to move for a new  trial but this be object to on the part of the respondent the counsel be  direct to withdraw and after debate the question be put whether the say  affidavit shall be read and resolve in the affirmative the affidavit be accord  read and after hear counsel on both side it be order and adjudge that the  appeal shall be dismiss and the decree and affirmance thereof therein complain  of affirm jour vol p