— Section 3890 of the Code of 1876 provides, that “ whenever it is necessary for any fact to be tried by a jury, the court must direct an issue to be made up, setting forth clearly the true fact to be tried; and such issue must be tried before the chancellor, or may be sent to the Circuit Court in the district for trial,” &c. Section 3891 is in these words: '“Such issue must be tried .upon the like evidence as a suit at law, .together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order.”
These sections relate to issues out of chancery. They declare hy statute what had long been known as a well recognized rule in chancery proceedings. The principle on which it rests is, that in doubtful or controverted questions of fact, requiring *342inferences to be drawn from indeterminate premises, or where the testimony is in irreconcilable conflict, the mind of the chancellor is left in doubt. The verdict of a jury, in such case, instructs the conscience of the chancellor, and enables him to arrive at a more satisfactory conclusion. — 1 Brick. Dig. 735, § 1421. We will not say there may not be cases, many cases, where the testimony is so plain and clear, that it would be a reversible error for tUe chancellor to order an issue to be tried by a jury. In such cases, it would not “ be necessary for any fact to be tried by a jury,” and the case would not fall either within the rule or the statute. The expense and delay consequent on such reference forbid that it should be resorted to unnecessarily. Eew cases come before us, in which this practice has been resorted to, and we feel safe in affirming that the chancellors exercise this function of the court sparingly. When there is an issue of devisavit vel non, a trial by jury may be demanded, as matter of right. — 1 Brick. Dig. 735, § 1422.
When the testimony is indeterminate, or conflicting, who is to determine when it becomes “ neeessary for any fact to be tried by a jury?” It would seem, on principle, that this question must necessarily be submitted to the discretion of the chancellor. He is charged with the ascertainment of the facts,, and he, of necessity, must determine the inquiry, whether his judgment and conscience are so clearly convinced, that he does not need the finding of a jury. The exercise of such discretionary power by the chancellor, can not be the subject of review in an appellate court. — Anonymous, 35 Ala. 226; Dale v. Roosevelt, 6 Johns. Ch. 255; Tappan, v. Evans, 11 N. H. 311; Bassett v. Johnson, 2 Gr. Ch. 417; Black v. Shreve, 13 N. J. Eq. 454, 478; 2 Dan. Ch. Pr. 1110, n. 3. Applying this principle to this case, we feel bound to affirm that the complainant’s right of recovery depended largely on inferences to be drawn from circumstances of suspicion, against positive testimony to the contrary. We can not say this case falls without the chancellor’s discretionary power, to order the disputed question of fact to be tried by a jury.
2. It is contended, in the next place, that the chancellor should have decreed for complainant, veredicto non obstante. This contention is based alone on the depositions found in the record. But how can we know, or presume, that the issue before the jury was tried on that evidence alone? The statute directs that “such issue must be tried upon the like evidence as a suit at law,” together with the proof furnished by the chancery file, as the chancellor may order. How. in the state of this record, are we to know what oral evidence was or was not given before the jury ? In the absence of record proof to the contrary, we must presume that all was rightfully and law*343fully done in the court below. If the appellant was dissatisfied with the conduct of the trial of the issue in the Circuit Court* he should have had the particulars wherein he supposed himself injured by the rulings on that trial, certified by the presiding judge, and thus made that certificate, or the certified exceptions, the basis of a motion for relief before the chancellor. The chancellor had power to award a venire ele novo, with more specific directions, if he chose to give them; or to disregard the finding of the jury, as based on illegal or insufficient testimony, or improper rulings by the presiding judge. — Alexander v. Alexander, 5 Ala. 517. In Fitzhugh v. Fitzhugh, 11 Gratt. 210, the principle is declared, that “ upon an issue directed out of chancery, the verdict of the jury is conclusive, where there is no exception spreading the facts proved upon the record.” The same principle is declared in Dodge v. Griswold, 12 N. H. 573. See, also, Lansing v. Russell, 13 Barb. 510.
There is nothing in the present record to show any improper ruling in the Circuit Court; nothing to show what additional testimony was before the jury, and no motion for a new trial was made in the court below. We feel bound to presume the verdict was sustained by sufficient evidence.
The decree of the chancellor is affirmed.