Brownlee v. Martin

Mr. Justice McGowan.

I concur in the result. The jury found every issue of fact for the plaintiff. But as the defence *403involved in tbe alleged verbal agreement when Mrs. Martin removed to the River place, was equitable in its nature, it seems that, according to the case of Adickes v. Lowry, the Circuit judge, in the exercise of his chancery powers, should have himself determined it, and not submitted it to the jury. The record discloses no objection at the trial to that issue going to the jury along with the other questions of fact; but possibly the judge, even against the consent of the parties, should have decided it himself, and not having done so, the case must go back upon that point alone.

Judgment reversed.