The minority say that to them it would seem to be useless and unnecessary to have a complete retrial of this case, but, notwithstanding such view, believe the same should be properly left to the discretion of the trial judge without a jury, however, to proceed with or without the taking of additional testimony to a decision of the case. This clearly is depriving the chancellor of *Page 338 the right to have issues of fact determined by a jury to aid his conscience.
If, as the minority feel, the chancellor has abused his discretion and ought to be directed to proceed to decide, then why permit him to take additional testimony?
It seems to me that the proper way to test the right of relator to a writ of mandamus directing the trial judge to proceed to a decision would be as though the alleged abuse of discretion on the part of the trial judge was here for review on appeal. Clearly there is no manifest abuse of judicial discretion. The matter of referring questions of fact in equity causes to a jury, in aid of the chancellor, is always addressed to his discretion, and we cannot undertake to control his action in that regard unless there has been a palpable abuse of that discretion. 4 C.J. 828. Blakey v. Johnson, 13 Bush 197, 26 Am.Rep. 254.
Three trials have been had, and the chancellor's conscience is troubled. Three juries cannot agree. I can see no manifest abuse of discretion in these conditions. It is unfortunate that jury terms are so far apart that years elapse before a final decision can be arrived at. If this was a law case, no complaint could be had on that score. A litigant in a law case has the unquestioned right of trial by jury. If there are ten jury disagreements in a law case, the litigant still has that right. The chancellor has the right to submit an issue of fact to a jury to aid him in arriving at a decision. This right is not subject to review except for palpable abuse. The number of times a jury might be called to so aid the chancellor is not determinative of such abuse.
I quote from Daniell's Chancery Practice, vol. II, pp. 439 and 440:
"It is to be observed, that if the matter relates to the right to land, the Court will frequently direct new trials of issues, even in cases in which the issue has been properly tried, and the verdict is satisfactory upon the evidence, the practice of the Court being adverse to making a decree to bind the inheritance, where there has been but one trial at law. (r) This is the case, especially where the object is to establish a will against an heir-at-law; for as the heir, but for the interference of the Court, would be entitled to take the successive opinions of juries, by new ejectment, this Court will not bind him by one trial only, but will direct a second; (s) and if it happens, that one verdict goes one way, and the other another way, then the Court will ordinarily, on motion, order a third trial, which is commonly [*]conclusive. (t) But where there was verdict against verdict, and a third trial was prayed by him for whom the first went, and it appeared to the Court, by affidavit, that, since the last trial, he had caused a bank of earth to be dug away, and with it certain old posts which were fixed in the ground, and were supposed to have been the bottom of park pales, dividing the land in question so that the jury could not now have any view of it, the Court, for this cause, denied another trial. (u)
"But in the case of a will, even after two trials, in both of which the verdict has been *Page 339 in favour of the will, the Court, where it was not satisfied with the manner in which the last trial was conducted, has directed a third trial; (x) and that, even though it did not appear from the judge's report, that there was any reason to disturb the verdict. It seems, also, that even after three trials, the Court will, if it sees reason to be dissatisfied with the verdict, grant a fourth. An application for this purpose, was made to the Court in Pemberton v. Pemberton, (y) and no objection was raised to the power of the Court to direct a fourth trial, though the result of the case was, that Lord Eldon, being satisfied with the verdict, refused the motion. In general, however, the Court will not direct a new trial after a third, unless upon some special ground: and in Attorney General v. Montgomery, (z) Lord Hardwicke said, that where there had been two trials, the last of which was at bar, this Court has suffered the last to prevail; and that to lay down a rule that there must be three, would be attended with great expenses. In the Minor Canons of St. Pauls v. Morris, (a) after two trials, at bar, a third trial was refused, although evidence had been rejected at the last, which the Court thought ought to have been received; and, in Bates v. Graves, (b) the Court refused a third trial of an issue as to the validity of a will of real estate, although neither of the former trials had been at bar."
I also find in a note in Beach's Modern Equity Practice, vol. 2, on page 660, under the subject-matter of Feigned Issues, the following: "Chancery will often grant a second, and sometimes a third, fourth, or even a fifth, trial of a feigned issue, in cases where a court of law would not disturb the first verdict. Patterson v. Ackerson, 1 Edw. Ch.[N.Y.] 96."
That the chancellor can disregard the unanimous verdict of a jury, and submit the question to another jury, and not be charged with abuse of discretion, is settled law. 21 C.J. 586, and cases cited.
"In chancery cases, except in cases where the submission to a jury is required by law or the rules of chancery practice, the chancellor is the judge of the weight of the evidence and of the ultimate facts established by it. If he submits controverted questions of fact to a jury, as he may do, the verdict or finding of the jury is advisory merely. He may adopt the verdict, or set the same aside and resubmit the question to a jury, or he may disregard it, and enter such a decree as in his judgment equity demands. He may enter his decree after setting the verdict aside or without setting it aside." Hardy v. Dyas, 203 Ill. 211,67 N.E. 852, 853.
If the chancellor can disregard the verdict of a jury and render a contrary decision, or he can disregard the verdict and again submit to another jury a question of fact already unanimously agreed upon by a former jury, I cannot say that, because three juries have disagreed, the chancellor should be deprived of his right to the aid of a jury in determining issues of fact and hold that he has abused his discretion. *Page 340
I agree with the result achieved by Mr. Justice HUDSPETH in his opinion.