bright executor of Hannah crisp widow versus einon Wednesday that June new  trial grant where the jury have draw a wrong conclusion on fact admit on both  si Ves Mr justice Wilmot be absent sit in chancery as one of the lord  commissioner of the great seal the plaintiff counsel move for a new trial upon  payment of cost and obtain a rule to show cause why this verdict shall not be  set aside upon payment of cost Lord Mansfield say that he do not choose in any  cause try before he to conclude the matter by a short report that he be  satisfy or dissatisfy with the verdict he will state the case particular to  the court and reserve declare his opinion of the verdict burrow which he have  not yet intimate either at the trial or since till he have beard the counsel  on both side this be a action upon the case bring by the plaintiff as executor  of Hannah crisp widow decease against the defendant upon a promissory note in  the follow word all of the defendant own write which be prove and read  acknowledge to have borrow of mrs Hannah crisp this that day of September the  sum of for which I promise to pay per cent per annum and to be Accountable for  the whole six month after notice give for that purpose John einon September  that the defendant set up a discharge by a write in the follow word I promise  unto John einon that in consideration of his pay unto I interest for sixty  pound he have of I during my life after the rate of per cent per annum that  then the say sixty pound at my decease shall be his and his note for the same  shall be void and of none effect witness my hand this that of October Hannah  crisp the body be all his own hand but he call two witness who say they  believe the name subscribe to be the hand of the testatrix but their knowledge  of her hand be very slight one of they have only see her sign a receipt he  allege that she give this discharge in consideration of a marriage between he  and Rebeccah bright his now wife sister to the plaintiff he produce a will in  his own custody bear date the l1h of August by which the testatrix have make  the say Rebeccah bright her executrix and residuary legatee this marriage be  not till may the testatrix die in April it come out upon his own evidence that  the testatrix be not worth and that she pay S a week or at the rate of a year  for her board he can make no proof of the consideration allege the far that  any of his witness go be to say that the testatrix seem to approve the match  the plaintiff in reply insist that the signature be forge josias bright swear  that the defendant wife do not know the defendant have borrow any money from  the testatrix till after she be marry after she be acquaint with it she press  he to burrow pay the money out of a legacy of from one Sarah heart which he  receive for the testatrix may call it in the defendant bid her not be uneasy  for must have six month notice several witness prove that Hannah crisp about  Michaelmas talk of call in the money upon this note and lend it to other  person that in and she order letter to be write to the defendant for the  burrow er p money when she give these order she produce the defendant note and  say the interest be not enough to maintain her it be prove that the defendant  enter a caveat at doctor be Commons in April and when he find she have make a  will in favour of the plaintiff and consequent revoke that which be in favour  of his wife he be very warm and mention a note from he to her and declare he  will not withdraw his caveat unless it be give up the plaintiff examine no  witness to say the signature be not her hand by way of rejoinder they call  witness to the defendant character who give he a good one the defendant  instruct his counsel to say that he always understand the gift to be revocable  by Hannah crisp during her life but if she do not revoke or call in her money  during her life then the debt be to be discharge the principal question make  at the trial be whether this latter note be forge or not and as to that the  two witness who believe it to be her hand be not oppose by any witness to the  contrary the reason give be that the plaintiff have no opportunity of get it  inspect his lordship say he leave two question to the jury saint whether the  name of the testatrix be forge d if they take it upon the evidence lie before  they to be her hand then whether it be not obtain by fraud and without her  know the content and effect of the write she sign the jury find for the  defendant Lord Mansfield intimate nothing then as to his own opinion of the  case and profess avoid do it now till he shall have beard the counsel burrow  they be accord hear and they who show cause against the rule go very much at  large into the propriety and rise of grant new trial they urge that a verdict  ought to be conclusive where evidence of any sort be give on both side that  the forgery here be the only question if the plaintiff object fraud and  imposition he must go to a court of equity for relief Lord MansfieldTrials by  jury in civil cause can not subsist now without a power somewhere to grant new  trial if a erroneous judgement be give in point of law there be many way to  review and set it right where a court judge of fact upon deposition in write  their sentence or decree may many way be review and set right but a general  verdict can only be set right by a new trial which be no more than have the  cause more deliberate consider by another jury when there be a reasonable  doubt or perhaps a certainty that justice have not be do the writ of attaint  be now a mere sound in every case in many it do not pretend to be a remedy  there be numberless cause of false verdict without corruption or bad intention  of the juror they may have hear too much of the matter before the trial and  imbibe prejudice without know it the cause may be intricate the examination  may be so long as to distract and confound their attention most general  verdict include legal consequence as well as proposition of fact in draw these  consequence the jury may mistake and infer direct contrary to law the party  may be surprise by a case false make at the trial which they have no reason to  expect and therefore can not come prepare to answer if unjust verdict obtain  under these and a thousand like circumstance be to be conclusive for ever the  determination of civil property in this method of trial will be very  precarious and unsatisfactory it be absolute necessary to justice that there  shall upon many occasion be opportunity of reconsider the cause by a new trial  and it be do in a way very favourable to burrow the party for who the wrong  verdict be give it be upon payment of cost whereas in other case where a wrong  judgement be reverse cost be pay as if the right judgement have be give in the  first instance it be not true that no new trial be grant before as have be say  from style new Abr burr burrow er p in blade be case m c which be in in b r  report in style the court be move for judgement former stay upon a certificate  make by baron atkins that the verdict pass against his opinion Bacon justice  say judgement have be arrest in the common plea upon such certificate hale of  counsel with the defendant pray that the judgement in that case of Slade may  be arrest and that there may be a new trial for that it have be do theretofore  in like case indeed that case as there report represent roll justice to hold  that it ought not to be stay though it have be do in the common plea for that  it be too arbitrary for they to do it and he add you may have your attaint  against the jury and there be no other remedy in law for you but it be good to  advice the party to suffer a new trial for better satisfaction in the case of  wood v gunston Michaelmas bane sup style which be a action upon the case for  speak scandalous word of the plaintiff and a verdict for the plaintiff with  damage the defendant move for a new trial and Glynn chief justice say it be in  the discretion of the court in some case to grant a new trial but this must be  a judicial and not a arbitrary discretion and it be frequent in our book for  the court to take notice of the miscarriage of jury and to grant new trial  upon they and it be for the people benefit that it shall be so for a jury may  sometime by indirect deal be move to side with one party and not to be  indifferent betwixt they but it can be so intend of the court and in that case  a new trial be order upon the defendant pay full cost the judgement stand as a  security to pay what may be recover upon the next verdict the reason why this  matter can be trace further back be that the old report book do not give any  account of determination make by the court upon motion indeed for a good while  after this time the grant of new trial be hold to a degree of strictness so  intolerable burrow that it drive the party into a court of equity to have in  effect a new trial at law of a mere legal question because the verdict in  justice under all the circumstance ought not to conclude and many bill have be  retain upon this ground and the question try over again at law under the  direction of a court of equity and therefore of late year the court of law  have go more liberal into the grant of new trial accord to the circumstance of  the respective case and the rule lie down by Lord Parker in the case of the  queen against the corporation of Helston h Ann b r seem to be the best general  rule that can be lie down upon this subject videlicet do justice to the party  or in other word attain the justice of the case the reason for grant a new  trial must be collect from the whole evidence and from the nature of the case  consider under all its circumstance this power may be exercise at much less  expense of time and money therefore more beneficial for the subject by the  court of commonlaw where the cause have be try of late year new trial have be  grant not only after trial at nisi prius but also after trial at bar and it be  at least equal reasonable to do it after trial at bar as after trial at nisi  prius if the justice of the case demand it or indeed rather more so as the  latter must be do upon what can have actual and personal appear to a single  judge only whereas the former be ground upon what must have manifest and full  appear to the whole court I come now to the present verdict and shall be sorry  that the question depend upon my be satisfy or dissatisfy and therefore I have  state the whole if the matter in dispute be of great value will not say that  all the suspicious circumstance may not be a ground for a new trial to give  the plaintiff a opportunity of get the instrument inspect by person acquaint  with her hand though I think upon the evidence lie before the jury the verdict  in that respect be right what I go upon be the apparent manifest fraud and  imposition in obtain the discharge from the testatrix if she real sign it  fraud or covin may in judgement of the law avoid every kind of Act many  instance be put in Fermors case   see lucas report pa burrow er p burrow what  circumstance and fact amount to such fraud or covin be always a question of  law court of equity and court of law have a concurrent jurisdiction to  suppress and relieve against fraud but the interposition of the former be  often necessary for the better investigate truth and to give more complete  redress a the write upon the face of it speak imposition it purport be for  consideration she release the principal in consideration of per cent during  her life which be only legal interest and the precise rate he be oblige to pay  by his note the defendant have set up another consideration not express which  be not only not prove by he but disprove by the evidence on both side he now  contend and his counsel have argue that it be intend to be revocable by her  during her life and therefore be only in the nature of a legacy that power to  revoke be omit the write all of his own hand and keep in his own custody and  if it be in the nature of a legacy it be revoke by the subsequent will the  testatrix never imagine she have strip herself of this money in her  circumstance it will have be madness the defendant during her life do not dare  to say even to his own wife that the testatrix have give he this money he do  not dare to claim it immediate after her death but will have compound by  withdraw his caveat to have get his note deliver up No answer be attempt by  proof to the apparent imposition upon his own case state by himself and the  evidence on both side the transaction to get her hand to this write must have  be fraudulent and if it be so the law say he shall not avail himself of it the  attention of the jury be artful draw to the heinous charge of forgery only and  leave the question of fraud to they without any express direction I that the  circumstance speak fraud apparent the same jury may upon reconsideration find  a different verdict I dare say they mean to do right but the merit of the case  appear to I in this light I be clear of opinion that there ought to be a new  trial burrow these be my sentiment my brother will judge whether I be right or  not Mr just denison concur in they he add that it will be difficult perhaps to  fix a absolute general rule about grant new trial without make so many  exception to it as may rather tend to darken the matter than to explain it but  the grant a new trial or refuse it must depend upon the legal discretion of  the court guide by the nature and circumstance of the particular case and  direct with a view to the attainment of justice in the present case he say it  appear to he that the testatrix mrs crisp have be impose upon and he hold that  fraud be sufficient to invalidate this her defeazance the subsequent note of  discharge sign by her even in a court of commonlaw for proof of which he cite  Throughgoods case   where it be hold that the deed of a unlettered layman into  the execution whereof he be deceive by its be wrong read to he or false  explain to he though by a stranger to the party to who the deed be make shall  not bind the unlettered person who make it Mr just foster agree to the  propriety of what have be say as to such case in which the jury give verdict  against evidence and even as to case where there may be a contrariety of  evidence but the evidence upon the whole in point of probability great  preponderate against the verdict which depend on a variety of circumstance be  matter of legal discretion and can be bring under any general rule but in all  case where the evidence be near in state of equilibrium he declare that he  shall always think himself bind to have regard to the find of the jury a a  court of equity may in some case give relief against the bar of the statute of  limitation where a court of law can booth v Lord Warrington that April in dom  proc this seem to have be admit by the case but by the question put to the  judge it seem as if even in that case a action of disceit or some other action  may have be maintain at law and if so that be a case rather in confirmation of  than in contradiction of the generality of the extent of Lord mansfield  opinion burrow er p for have questioning fact respondent a swearer in such a  case it be not the province of the judge to determine it ought to be leave to  the jury fraud will invalidate in a court of law as well as in a court of  equity we all remember the case of Wyndham v chetwynd p g in this court where  the court direct the jury to find non devisavit though there be a devise ill  fact but it be obtain by fraud and therefore consider as no devise at all and  he agree with Lord Mansfield and Mr justice denison that in the present ease  the defeasance or discharge the subsequent note be obtain from mrs crisp by  fraud and that it appear upon the whole of the evidence that it be so obtain  and that the jury have draw a wrong conclusion from fact admit on both side  burrow therefore he think the verdict ought to be set aside per cur unanimous  the rule for set aside the verdict be make absolute note Mr justice Wilmot be  absent in chancery Mr gold of counsel for the plaintiff move that it may be  without cost but he be answer by Mr justice denison and Mr justice foster Lord  Mansfield be now go that this be direct contrary to the term upon which he  himself have move it and accord they only order the verdict to be set aside  upon payment of cost by the plaintiff MemorandumThe cause never come on to be  try again probable the defendant acquiesce in the opinion of the court and pay  the money