References: [1841] EngR 890, (1841) West 637, (1841) 9 ER 627
Links: Commonlii
JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.