Petition for a re-hearing.
Conceiving that injustice has been done him by the opinion rendered in this case, the plaintiff respectfully invites the Court to a further examination of the facts and principles decided, and asks a re-hearing of the cause.
Claiming under A. K. Marshall, deceased, the suit was brought, by Beatty, to enforce the specific execution of a contract made by Marshall and Lee, whereby the latter covenanted to convey the title to a described tract of land, and the former covenanted to pay the stipulated price.
Lee admits payments amounting to nine hundred and thirty dollars; but denies further payment, or that Marshall is entitled to any other credit; and insists that he ought not to be compelled to convey, until the entire price of the land is paid.
The Circuit Court caused a jury to be impanneled, “to ascertain and by their verdict determine, what *209payments have been made upon the- covenant of Marshall, and how much is still due.” The jury, by their verdict, found, “ that the claim of Lee referred to in the issue made up in the cause, has been paid.” Lee then moved to set aside the verdict; but his motion was overruled; and, by exceptions to the opinion of the Court, the evidence used before the jury is set out at large. In ordering the jury, the Court gave no directions as to the description of evidence which was to be introduced, by either party, on the trial of the issue; nor was any witness examined on the trial, or any evidence introduced, except that which was contained in the record when the jury was ordered and impanneled.
It is conceded by the Court, that if there had been no finding by the jury, as to the disputed fact of payment,the evidence would not authorize a decree in favor ofBeatty, for the specific execution of the contract, without his paying the amount claimed by Lee to be due and-unpaid for the land; but, according to the opinion, the finding of the jury is made to turn the scales of probability, as to the litigated fact of payment, and the Court has therefore sustained the decree of the Circuit Court which but for that finding would have been reversed!
The Court say: “Upon a careful analysis and due consideration of all the antagonist facts and deductions; on each side, we are inclined to think that they leave the scales of inductive probability very nearly equipoised: and therefore, as Beatty would not be entitled to a decree for a specific execution in a case of so much doubt', without paying the balance claimed by Lee, we should feel it our duty to reverse the decree, had there been no' finding by a jury, as to the litigated and doubtful faet of' payment.” And, “ we are also inclined to the opinion, as before suggested, that there was no actual or formal payment in money of the balance appearing after deducting the nine hundred and thirty dollars, but that this balance was adjusted in some claim or account Marshall had oq Lee, and which was understood between them as being set off against it, and thus only extinguished.”
It is believed that the Court has given to the evidence a stronger bearing in favor of the probability of pay*210ment, than is warranted by a fair and reasonable construction of the testimony. But it is not intended to go into a particular examination of the facts and circumstances proved. The attention of the Court is respectfully invited to a re-examination of the record, and the facts which the evidence conduces to prove. But supposing the Court to be correct in the opinion expressed as to the opposing probabilities, we insist that the Court has given to the finding of the jury a weight and influence to which it is not entitled. It was undoubtedly competent for the Court to decide on the contested fact of payment, without the intervention of a jury. The case was one of equitable cognizance, and in the exercise of its jurisdiction, it was not only competent, but incumbent on the Court to decide every contested fact. It was doubtless within the discretion of the Court to refer to the decision of a jury, the disputed fact of payment. But we deny that the Court was relieved by the finding of the jury, from deciding on the fact of payment, according to its own opinion on the evidence. It was the province of the Court to determine the contest. The decree to be made, was to be the decree of the Court. The decision of every fact involved in the contest was to be the result of the judgment of the Court, upon the evidence, and not the result of any opinion which a jury might form. As well might this Court, in reversing the decree of the Circuit Court, be influenced by the opinion of the Circuit Judge on a doubtful and disputed fact, as for the Circuit Judge to be influenced by the finding of a jury in a case which might be decided by the Court without the intervention of a jury. If, on-the trial of the issue by the jury, there had been a viva voce examination of witnesses, the finding of the jury might' with more propriety be entitled to some influence in considering the evidence as to the fact of payment. By having the witnesses before them, and seeing their deportment and manner of detailing their evidence, the jury would be better able to decide on their credibility and judge of the weight of their testimony, than it would be possible for the Court to do, by inspecting their testimony as taken down in writing. Under the Eng*211lish chancery practice, it is not unusual in the progress of a case, when a fact arises about which the Chancellor entertains doubt, for him to cause an issue to-be made up on the doubtful fact, and send it to be tried in a court of law, where the parties have the benefit of a viva voce examination of the witnesses. But even after such a trial, the Court never considers itself bound by the finding of the jury.' The assistance of the jury is called to satisfy the conscience of the Chancellor; and he may make no use of the verdict whatever, and treat it. as a nullity. Gresley's Equity Evidence, 405. It might,, however, be admissible, in a case of extreme doubt, to give some weight to the finding of the jury, upon such examination of witnesses; but it is matter of doubt whether, at this day, such a verdict would-be regarded by the English Chancellor, so as to change an opinion which he might form from the evidence. Be that, however, as it may, we insist that the verdict in this case, ought not to be regarded by the Court, so as to change the opinion which- would have been given, if no such finding had been had. The jury heard no testimony other than what is contained in the record: no witnesses were examined before them, and they possessed no advantages over the Court in deciding on the credibility and weight of the testimony,
It is not to verdicts found upon evidence such as was before the jury in this case, but to verdicts found on viva voce examination of Witnesses, that Maddock alludes, in the passage cited by the Court.
We would remark that, the jury were not called to enquire as to any set-off. The fact of paj was in issue; and the jury cannot be cons ing decided as to any other fact; nor does Ihe’Vecord, as we insist, contain any evidence as to set-jrafeiJ.
OMeyJor
[By the Chief Justice.] An allegation of pleading’ if su isfaction of the demand, in any way — as hy set-satisfaction &cf The practice of ful question in tofurie is not confined. to those cases where witnesses are to he when the chaned with doubtful questions of fact, ile may have the aid of a jury— the decision must be upon the written evidence the record, as mon^teto he In-traduced. Ante,Response to the Petition.
We cannot perceive how it can be considered material in this case, whether the balance claimed by Lee, bad been discharged . by a technical payment, or by a set-off, or an accord and satisfaction. The only question m equity is — whether Lee ever received from Marshall fuU satisfaction in any mode effectual between the parties.
Nor can we admit that the quotation.we made in the opinion, from the 2d vol. of Maddock,s Chancery, refers only inquisitions upon other evidence than that contained in the record at the time of ordering the jury he more satisfactory ascertainment of doubtful facts by extrinsic evidence, may frequently, perhaps general-be one chief motive for summoning a jury in chaneery. But the quotation from Maddock and the doctrines recognized m many adjudged cases show clearly, that this is not always the only object of the Chancellor, but that, not unfrequently, another end is to be effected by it; and that is, to satisfy the conscience of the Judge; S*ve more confidence and satisfaction to the parties, and thus increase the chances for justice and content in a case perplexed by doubtful facts, which the common sense and experience of twelve intelligent jurors peculiarly qualify such a tribunal to decide correctly and satisfactorily. And if the jury, upon such an inquisition, should examine witnesses viva voce, still, as that examination is, in this State, in the presence and under the superintendence of the Chancellor, and never (as in England) in any other Court, we can perceive no reason why a verdict on such testimony should here be entitled to more, or to much more, influence on the Judge than he should concede to a similar verdict rendered altogether on the facts before him, on the record. We are well satisfied that it is a long established and a wholesome practice in equity, to call in the assistance of a jury, whenever the Judge feels perplexing doubt upon *213important facts which he is unable to decide satisfaetorily to his own conscience. This is not denied, but is virtually admitted by the petitioner; who concedes, also, that, in such a case, the verdict, even when rendered on record evidence alone, should be entitled to some effeet. And if, as undoubtedly it should, a verdict in sueh a case should be entitled to some influence — why should it be disregarded or set aside when the Court does not dissent from it, and especially when, as in this case, the Court is inclined rather to concur with the jury?
Although we are still of the opinion that, independently of the verdict, the facts were so doubtful as to have justified a refusal to decree a specific execution, yet we have inclined, and still incline, to the conclusion that the full price agreed to be paid for the land had been received by Lee before Marshall’s death. And, in such a state of case, it does seem to us, that the verdict ought to be deemed satisfactory and conclusive. If not, why were the facts submitted to a jury?
We are satisfied that, in such a case, such verdict should satisfy the conscience of a doubting, but rather concurring Court, and should therefore prevail. Lord Falconburgh vs. Price, Ambler, 210; Coker vs. Farewell, 2 Pr. Wms. 564; Clark vs. Montgomery, 2 Atk. 378. No countervailing authority has been cited or intimated* in the petition.
Wherefore, not presuming that a re-argument would change our opinion, the petition is overruled.