delivered the opinion of the Court:
This was a suit in chancery brought by Lewis Russell, in the Whitesides Circuit Court, against David W. Paine, to foreclose a mortgage on lands described in the bill. Defendant answered and denied that he had ever executed the note described in the bill, and insisted that complainant had no right to a decree. On a hearing in the court below the bill was dismissed at complainant’s costs, and he now brings the case to this court by appeal and asks a reversal of the decree.
We have looked into the record, and after a careful examination of the evidence, find it to be quite conflicting and inconclusive. It is so much so that it is difficult to arrive at any very satisfactory conclusion as to the real merits of the controversy. But, notwithstanding the inconclusive nature of the testimony, we incline to the opinion that it would have warranted the court in granting the relief sought. Inasmuch, however, as the case will be remanded for further proceedings, we shall abstain from a discussion of the evidence in the record.
This is of that character of cases where the chancellor should require an issue of fact to be formed, and tried by a jury. In such a conflict of evidence, and where there is such uncertainty as there is in this case, the issue may well be submitted to a jury for their determination. It is within the discretion of the chancellor, at any time before a decision is arrived at, to require such an issue to be formed. Where the evidence is contradictory, depends upon slight circumstances, the veracity of witnesses is involved, and where the manner, intelligence and relation of witnesses to a case, must have their proper weight, it is highly desirable that the issue should be tried by a jury.
Inasmuch as we are not satisfied with the decree of the court below, it is reversed, and the cause remanded, with directions to the court below to have an issue of fact formed and submitted to a jury for trial, and for such other and further proceedings as the case may require.
Decree reversed.