Without doubt the defendant in this suit presented a strong array of testimony in favor of his account of the true character of this deposit. His two brothers and the overseer of the father, as well as the incidental evidence of the father’s revocation of the trust, and his own answer in direct response to the eharges of the bill, taken together, make a more than ordinarily strong case. We do not, however, agree with the position taken by the counsel for the plaintiff in error, that an answer in equity in response to a bill, is to be held uncontrovertible, unless contradicted by two witnesses or one witness and circumstances. That is the rule when the answer is to be weighed and compared with other witnesses. But an answer may contradict itself; may be unreasonable or state impossible facts, and when this is the case, its credibility is liable to be attacked, as the statements of other witnesses. We might have one witness opposed to two witnesses, *220or even more, and yet we might believe the one against several, and have good, substantial, legal reasons for it: Gresley, Eg. Ev.
As against this array of the defendant’s testimony, there were his own letters, his admissions in giving in his tax, and his settlement with the complainant’s brother, together with the reasonableness and propriety of the view that this was a trust, and the very unusual conduct of the grand-father, on the supposition that this was originally such a deposit as it set up. Still, it was possible, and all the admissions and acts of the defendant are explainable on this hypothesis, since even in the event supposed he would be a conditional trustee, and might well so consider himself, especially if he felt certain that his father would not revoke his bounty to these grand-children.
We think this is just one of the cases where the discretion of the Court is a material element. Had he refused a new trial we should not interfere with his judgment. As he has granted it, we will interfere with even more reluctance, since the only effect of the ruling is to give the parties another hearing. Another jury may, perhaps, look more to the actual testimony, and less to the equity and reasonableness of the claim set up by this lady on the bounty of her grandfather. We incline to think that the jury have been unable to divest themselves of the feeling that whatever the evidence may show, the right of the matter is with the complainant, and that it is due to the powerful array of evidence presented by the defendant, that the case be submitted to another jury. We do not think, therefore, that this is a case of an illegal use of the discretion vested by law in the Circuit Judge, and we shall not interfere with his decision.
Judgment affirmed.