Walker v. Hunter , 17 Ga. 364 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

Was it right to grant the new trial ? That is the sole .question in this case.

The Court below put its decision granting a new trial, on a number of grounds, ,viz: That the paper propounded as the will of Hunter had not been proven, in solemn form, to be his will.

That the execution of that paper had not been sufficiently-proven.

That the verdict of the Jury was contrary to the evidence and the weight of the evidence — contrary to the charge of the Court and contrary to law.

That one of the Counsel for Walker entertained at his • house one night during the trial, Walker and two of the Jury.

That the paper in the hand-writing of Solomon, found by the Jury in their room, was calculated to mislead the Jury.

If any one or more of these grounds were good, whether the others were good or not, the new trial was properly granted, and the judgment granting it ought to be affirmed. This Court might, therefore, content itself with pointing out such of the grounds as it considers good, if such there are, and go no further; but as the decision of-the Court below was placed on all the grounds, it will not be improper, and probably will be best, for obvious reasons, even in case of an affirmance, that this Court shall consider all the grounds, though it may think some only of them good. That, therefore, will be done. In doing it, however, the grounds will be taken up in a different order from that in which they have just been stated.

Was the verdict contrary to the evidence, or to the weight of the evidence ? This is the ground I shall begin with.

As to this ground, the Counsel for the plaintiff in error say, first, that the verdict was not contrary to the evidence or to the weight of the evidence ; and secondly, that if the verdict was contrary to either, it was so only because a part of the evidence was illegal evidence, namely: so much as related to Charles Hunter — to his deed, to his will and to his property— so much as related to a former will of Wm. Hunter, and to the sayings of his wife, and so much as related to the sayings of Charles Walker and others, before he, Walker, became executor, or before the trial had been made.

The latter of these replies will be noticed first. Is it true that this part of the evidence was illegal evidence ?

The reason given by these Counsel for saying that the evidence relating to Charles Hunter, to his property, ■ to his will and to his deed, was illegal, was, that it was irrelevant; that it could have nothing to do with an issue concerning a paper propounded as the will of another man, Wm. Hunter.

What, then, was the issue and what the nature of the evidence in question ?

The caveator, among other things, alleged, in substance, that Charles Walker, with the design of acquiring for himself or a son, or both, the property of Wm. Hunter, a person not akin to either him or his son, by the use of undue influence and fraudulent contrivances, induced William Hunter to make the propounded paper as his will; that though, by that paper, a portion of Wm. Hunter’s property was given to Charles Hunter ; yet, that Charles Hunter was a person of great weakness of mind, and one entirely under the influence of Charles Walker, and that the giving of a portion of the property to Charles Hunter, was, in effect, the same as giving that portion directly to Charles Walker, as was proved by the result, which was, that Charles Hunter, after the death of Wm. Hunter, partly by deed and partly by will, gave all of the portion of the property given him by Wm. Hunter’s will to Charles Walker. This, in substance, is alleged by the caveator.

Now so much of this allegation as refers to Charles Hunter, his property, his deed and his will, the evidence objected to about him, his property, his deed and his will, tends to prove. This becomes apparent by merely reading that evidence.

The position, therefore, that that evidence was illegal, because irrelevant, is not well founded.

The only reason assigned in argument, by the Counsel for the propounder of the paper, to show the evidence of Mrs. Wheat and Samuel Jemerson, giving the sayings of their mother, spoken after her marriage with Wm. Hunter, in relation to a former will made by Wm. Hunter, to have been illegal, was, that the evidence was hearsay — was only of the sayings of Mrs. Hunter.

But as to Mrs. Wheat, it is not apparent that this reason is true, in point of fact. It is true, Mrs. Wheat swore this: “ Witness’ mother made an effort through Mr. Wheat, her son-in-law, soon after the death of Dowsing, to get possession of said will, but was informed said will could not be found amongst Esquire Dowsing’s papers.” But that this contains any thing that is hearsay, is far from clear.

And as to the evidence of Jemerson, he does, indeed, say this: “ He once had a conversation with his mother, then the wife of Hunter, in which she informed him that her husband had made a will, and had given one half of his property to his people, and the other half to her people.” But then he imr mediately adds this: “ That some seven or eight years after the death of his mother, he communicated to Wm. Hunter what his mother had told him, and asked him if he had made such a will? and he answered, that he had, but that since the death of his wife he had burnt it.” And this addition makes what had been the sayings of the witness’ mother, become, in effect, the sayings of Hunter. And any sayings of his were legal evidence.

The reason, then, assigned by the Counsel for the propound-er, to show this evidence to have been illegal, is not sufficient.

The sayings of Chas. Walker, which it was argued were illegal evidence, were those proved by Mrs. Lyle, and one proved by Humphrey Jemerson. And the objection to these sayings was, that they happened before the making of the paper propounded as Hunter’s will; and therefore, before Chas. Walker could have been executor of that will; and so, that the sayings, when made, were such as could,neither be against the interest of Walker, or as could hind those claiming under the paper propounded as the will of Hunter.

This objection to the evidence of both of these witnesses, as matter of fact, exists. And as to the evidence of one of them, Humphrey Jemerson, it is sufficient, as matter of law. But it is not so sufficient as to the evidence of the other, Mrs. Lyle, for her evidence is admissible on another ground. The sayings of Chas. Walker, to which she testifies, make part of the-transaction as much a part of it as does the fact that the-paper was executed at Chas. Walker’s house- make part of it. Those sayings are: “ that he, Wheat, was interested in the disposition of the property, and had more influence over him than any one else; and when he moved away somebody would get it, and that he, Mr. Walker, has as much right to it as any one else, apart from the legal heirs, and he would, after the removal of Mr. Wheat, nurse the old man and get it if he could.”

But as to the sayings testified to by Humphrey Jemerson, they manifestly make no part of the transaction — of any transaction in which Walker took part. They are merely to the effect, that the witness, that Humphrey Jemerson, not Walker, could influence Hunter to give him, Jemerson, all his property.

They were not admissible, therefore, as a part of the resgestee. And that being so, having been made before Walker-became executor, they were not admissible at all.

It is, as to this evidence, then, of Jemerson, and this only,, that the Counsel for the plaintiff in error are right in saying, that a part of the evidence in the case was illegal.

But this is a very small part of the whole evidence — too-small a part to warrant this Court in believing that the verdict turned upon it.

It remains to say, that in the opinion of this Court, the-Counsel for the plaintiff in error do not establish their position, viz: that if the verdict was contrary to the evidence, or the-weight of evidence, it was so because a part of the evidence-was illegal.

As to their other position on this point — the position, that the verdict was not contrary to the evidence or to the weight of the evidence, supposing the evidence to have been all legal, we express no opinion. That we should express one is not necessary, as on other grounds, we shall affirm the judgment granting the new trial; and as it is to he presumed that the .new Jury, should this same evidence come before them, will, of themselves, rate it at its proper value.

The next of the grounds on which the Court put its judgment — granting the new trial, which will be noticed is, the ground, that the verdict was contrary to the charge of the Court.

In respect to this ground, the Counsel for the plaintiff made a reply, somewhat similar to that which, as we have seen, they made in respect to the ground just considered. They said that a part of the charge was law and a part not law, and that though the verdict might perhaps be contrary to the latter-part, it was not contrary to the former; and so, that the verdict, even if contrary to such latter part, ought not to be disturbed.

Of the part of the charge which they insisted was not law, the following is a portion : “An executor proposing, therefore, to prove a will in solemn form, would be compelled to produce all the subscribing witnesses, if in his power to do so. But if it is impossible for him so to do, shall the will utterly- fail, and an intestacy be declared ? I think not. I am of opinion that its execution may be proven on the testimony of one or more-subscribing witnesses, and what, in law, is called the adminicular proofs. But the impossibility of producing the others must-be clearly and fully made, to the satisfaction of the Jury. You are not necessarily bound to set up this paper as a will, on the testimony of David Walker alone, because you may not' be satisfied with the proofs in aid of his testimony offered by the executor. The death of Thomas Walker, and his hand-writing, and the hand-writing of Lee, you may think, might also have been proven by other persons; and this would have been in aid of the testimony of the one subscribing witness. Also,, you may not be satisfied that the other witness, Lee, could not have been produced by the executor after proper effort made. If you should not be, then you would be at liberty to find against the execution of the instrument, in the opinion of the-Court; and therefore, the Court declines to charge you as requested, and in the language as requested by the Counsel of Chas. Walker. Rut on the other hand, if you are fully satisfied, from the evidence before you, that Thomas Walker, one of the subscribing witnesses to this paper, is dead; that Lee, the other, is out of the jurisdiction of the Court, and that it is not in the power of Walker to have produced him, and that he made all reasonable efforts so to do; furthermore, that it has been proven by other witnesses, that the deceased intended to make a will such as this, before it was made, and that after-wards he made such a one (this species of proof being adminicular, as I understand the term): and furthermore, from all the facts in evidence before you, you be satisfied that the testimony of David Walker is supported, aided and corroborated, you will be justified in finding, by your verdict, the execution, itself, of the paper, as a will, has been sufficiently proven ; and therefore, I refuse to charge in the language as requested by the heirs at law of the deceased.”

This portion of the charge the Court gave instead of one which the Court was requested by the plaintiff to give, and of one which it wTas requested by the defendant to give. That which it was requested by the defendant to give, was as follows : “ that it is the duty of the executor called on to prove a will in solemn form, to produce the subscribing witnesses thereto, and prove the testable capacity and testamentary intentions of the testator.”

That which the Court was requested by the plaintiff to give, was as follows: “ That the execution of the will is sufficiently proved by an attesting witness, who swears that he saw the two other witnesses sign and subscribe the will produced, in his presence, and signed and subscribed in the presence of the testator, and by his request, and in presence of each other, and that one of the subscribing witnesses is dead, and the other gone ■off out of the State, and that aftér inquiry he has not been .heard of.”

Considering what the Court charged and what it refused to .charge, we think the Court meant to declare this to be the law, viz: that in no case is the evidence of one witness sufficient to prove the execution of a will, in a proceeding to establish the will in solemn form; that in every case the evidence of at least iiwo witnesses is necessary, of which evidence, however, if. that of one of the two goes to the main' fact, the signing and publishing, that of the other need go no further than to some adminicular facts. We suppose, indeed, that the Court intended to tell the Jury, that in a proceeding to establish a will in solemn form, the law which governs as to evidence, is the general law of the Ecclesiastical Courts, according to which one witness does not make full proof. (1 Wms. Ex’rs, 214.)

If we are right in this, the questions are, first, what is the number of witnesses which the law of the Ecclesiastical Courts require in such a proceeding. Secondly, will other Courts, when such a proceeding is taking place before them, observe that law, whatever it is, in preference to the law which they use. in proceedings peculiar to themselves ?

If we make decided cases the criterion, we cannot, with certainty, say that it is the law of the Ecclesiastical Courts, that they shall require more witnesses than one to the execution'of a will. In the case of McKenzie vs. Yeo, (7 Eccl. Rep. 403) a case which, in the opinion of the Court deciding it, depended upon the evidence of but a single witness, the Court, it is true, refused to consider the will proved — but the Court, according to my understanding of what it says, puts its decision not' on the ground that the evidence was the evidence of only one witness, but on the ground that the evidence was, in itself,' not credible, all the facts of the case considered. My inference from what is said in that case is, that if there had been no countervailing facts in the case, the evidence of the one witness would have been held sufficient to prove the will.

And in the case of Moore vs. Payne, (2 Lee Eccl. Rep.) Sir Greorge Lee said that the proof of a will is by the jus g.entium, and that by that law, one witness is sufficient — adding, however, that in, the case of only one witness^ there should be some adminicular proof to corroborate him. But does the jus gentium, I ask, recognize this doctrine of the necessity of adminicular proof, when there is but one witness ?

Then it is beyond question the law that the Ecclesiastical Courts dare not, on pain of a prohibition, require more witnesses than one to the payment of a legacy, to the execution of a release, to the revocation of a will, to a defence against the subtraction .of titles. Shotter vs. Friend, (3 Mod. 283). Breedon vs. Gill, (1 Ld. Raymond, 221.)

And what reason can there be for the law’s being content with one witness in these cases, which does equally exist for its being content with one in the case of the probate of a will.

There is, however, it must be admitted, in Godolphin’s Orphan’s Legacy this passage: “But regularly, a single witness, without other adminicular proof, is not sufficient to prove a will, • as in the case of Chadron against Harris, where it is said that if the Ecclesiastical Court proceed in a manner that is mere •spiritual and pertinent to. their Court, according to the Civil Law, although their proceedings are against the rules of the Common Law, yet a prohibition does not lie. As if they refuse a single witness to prove a will, for the conusance of that belongs to them.” The same thing is said by other elementary writers, and perhaps by some Judges in the course of a decision. (1 Wms. Ex’rs, Pt. I. Bk. IV. ch. 3, see, 5. 18 Vin. Ab. Prohibition, (Q.) I doubt whether this position rests anywhere upon a better foundation than an obiter dictum. But of this I cannot be certain, as the case of Chadron against Harris, is reported in Noy — a report not within my reach.

Suppose it, however, to rest on a decided case, and so to be taken as law, how much does it amount to ? this much: that the temporal Courts will not, in any case, step forward and proMbit the spiritual Courts, in a proceeding for the probate of a will before those Courts, from requiring more witnesses than one to prove the will. It does not amount to saying that the temporal Courts themselves, in a proceeding before them, involving the proof of a will, must, in every case, require the evidence of more witnesses than one to make out the proof of the will. And if it did, it would be contradicted by a great number of decided cases.

The result of those decided cases is, I think, well stated by Gfreenleaf in his work on Evidence, in the following words: “It is ordinarily held sufficient, in the Courts of Common Law, to call one only of the subscribing witnesses, if he can speak to all the circumstances of the attestation ; and it is considered indispensable that he should be able, alone, to prove the perfect execution of the will, in order to dispense with the testimony of the other witnesses, if they are alive and within the jurisdiction. But in Chancery, a distinction is taken, in principle, between a suit by a devisee, to establish the will against the heir, and a bill by the heirs at law, to set aside the will for fraud, and to have it delivered up. For, in the former case, a decree in favor of the will is final and conclusive against the heir: but in the latter, after a decree against him, dismissing the bill, his remedies at law are still left open to him. It is therefore held incumbent on the devisee, whenever he sues to establish the will against the heir, to produce all the subscribing witnesses, if they may be had, that the heir may have an opportunity of cross-examining them; but where the heir sues to set aside the will, this degree of strictness may, under circumstances, be dispensed with.” (2 Greenl. Ev. sec. 694, see cases cited there. 2 Stark. Ev. 922, 923, and cases cited. 1 Phill. Ev. 501.)

The rule in the temporal Courts, then, in proceedings before-them, ordinarily is, that no more than one of the subscribing witnesses need be called, if that one is one who can speak to all the circumstances of the attestation.

Proceedings in the temporal Courts in which this rule has. place, are proceedings which involve title to land claimed under a will, as an issue of devisavit vel non, or sometimes an action of ejectment. In such proceedings, the party claiming under the will has to prove the will — probate in the spiritual Courts being only sufficient to prove a will for goods, but not to prove one for lands.

It seems, then, that in England, in the spiritual Courts, as. many as two witnesses are necessary to the proof of a will— such a will as those Courts can take cognizance of; that is, one of goods — and in the temporal Courts not more than one witness is commonly necessary to the proof of a will — such a will as those Courts can take cognizance of the proof of; that is, a will of lands.

This being the state of the English law, what is the state of our law ?

By our law, the proceeding for probate, whether the will be one of goods or one of lands, or one of both, has to begin in the Court of Ordinary, though it may pass from that Court into higher Courts — the Superior and the Supreme. (3d Art. Con. Ga. Walker’s Dig. 415. Prin. Dig. 231.)

Suppose a proceeding before that Court — as there has been-in this case for the probate of a will — a will partly of goods and partly of lands — which rule, as to the number of witnesses to be required, is the Court to follow, that of the English spiritual Courts, or that of the English temporal Courts — or is it to follow the rules of both ? These are the precise questions now for determination.

The answer to these questions depends on the changes which this State has made in the English law. What, then, are those changer ? They are, among others, the abolition, not only of the Ecclesiastical Courts, but of the whole Ecclesiastical establishment ; the erection of the Court of Ordinary instead of those Courts ; the erection of nothing instead of that establishment, and the adoption of “ the Common Laws of England.” The Court of Ordinary is a temporal Court, and is subject to-the supervision of the Superior Court, and ultimately, to the .supervision of this Court — both of which are also temporal Courts — and Courts under the especial government of those “ Common Laws of England” adopted by the State as aforesaid.

It seems to this Court a fair inference from all this, that the State intended the abrogation of all those usages and rules of the Ecclesiastical Courts, which were peculiar to those Courts, and which were opposed to the Common Law; and the substitution of the Common Law for those usages and rules — as for example: the abrogation of the usages and rules by which those Courts imposed penances, excommunications and other spiritual punishments — those by which they enforced the payment of tithes and other dues to the clergy — those by rrhich they gave redress for the injuries of spoliation, dilapidation and neglect of repairing the church — those by which they required the depositions of witnesses to be taken down in writing — and those by which they required, for the proof of any fact, the evidence of not less than two witnesses.

This view is confirmed by the want of any attempt, on the part of the Courts of Ordinary or the Superior Courts, when ■supervising cases, brought up to them from the Court' of Ordinary, to exercise or enforce any of those usages or rules. Those Courts, as far as we know, have never required depositions to be taken down in writing, or required the evidence of at least two witnesses to every fact or allegation in a case. In cases of marriage and divorce, which were, before the Revolution, cases of spiritual cognizance, the Superior Courts have never held that, be the circumstances what they may, the evidence of at least two witnesses was essential to the proof of every matter in the cases. On the contrary, these Courts, in practice, have contented themselves with the employment, as to this particular, of the rules of evidence prescribed by the Common Law.

And the view is also confirmed by the absurd, not to say bad consequences which would follow from the adoption of the opposite view — the view that the State did not intend for those spiritual usages and rules to give place to the rules of the Common Law. For in the case supposed, of a will of both lands •and chattels seeking probate, if but one witness could be called by reason, say of the death of the other two or more, the Court, governed by those usages and rules, would have to hold the will good as to the lands, but null as to the chattels.- And is it to be presumed that the State ever intended a thing, to say the least, so absurd as that?

[1.] Upon the whole, the conclusion to which this Court comes is, that in the probate of wills, the Courts of Ordinary and the Superior Courts are to follow the rules of evidence prescribed by the Common Law and in use in the temporal Courts of England, at the time when Georgia first adopted the Common Law, unless Georgia has since repealed them; and not the rules of evidence then in use in the spiritual Courts of England; and therefore, we think that the Court erred in the charge to the Jury under consideration — a charge which, as we understand it, meant to tell the Jury, that unless the execution of the will was proved by the evidence of at least two witnesses, one speaking to the signing and publishing, and the other to that or to some adminicular circumstances, they could not find the execution of the will proved, whatever they might think of the other evidence in the case.

We do not mean to say, however, that we think the foundation laid for the introduction of' secondary evidence of the hand-writing of Lee, one of the subscribing witnesses to the paper propounded as a will, was sufficient.

Nor do we mean to say, that we1 think less evidence is required, when the proceeding for probate is compelled by the heir, who is adverse to the will, than when the proceeding is the voluntary act of the executor, or a legatee who is friendly to the will.

Another portion of the part of the charge which the Counsel for the plaintiff argue not to be law, is the following: “ That a person has not the right, and it is unlawful for him to move a testator to make him his executor or give his goods, when the testator is a person of weak judgment and easy to be persuaded, and the legacy great.”

This, although it has the sanction of Sioinburne, we cannot admit to be law. It has not the sanction of any other text writer, or of any decision, as far as we know., It is contrary to what was said by Lumpkin, J. in Potts et al. vs. House, (6 Ga. 359.) That is^as follows: “ With respect to a will alleged to have been obtained by undue influence, I would remark, that it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself or another; neither is it, to induce the testator, by fair and flattering speeches; for though persuasion may be employed to induce the dispositions in a will, this does not amount to influenclin the legal sense.” “On this subject as on that, with regard to capacity, no precise and distinct line can be drawn. Suffice it to say, that the influence exercised must be an unlawful importunity, on account of the' manner or motive of its exertion, and by reason of which the testator’s mind was so embarrassed and restrained in its operation, that he was not master of his own opinions in respect to the disposition of his estate.”

This language is very general. It says, that it is not “ unlawful” for a person, “ by honest intercession and persuasion, éo procure a will in favor of himself or another.” It makes no exception of the case, when the will is procured from a person of “weak judgment.” And we think there is no such exception to be made. If the testator “moved” be a person of weak mind, and the legacy he gives great, the effect produced certainly ought, in general, to be a very strong presumption that the “ moving” was undue — was “ unlawfulyet, the presumption ought not to be a conclusive one. For to make it conclusive might be to annul some very proper wills. Suppose that a father, of weak mind, is “moved” by his grown children to-make a will, giving to them, in equal shares, all of his property, and appointing one of them the executor — their motive being, the fear that if their father died intestate, none of them could become his administrator, by reason of inability to give securities ; and so, the fear that the administration of the estate would pass into the hands of strangers ? Ought such a will to be annulled — annulled on the ground that it was simply “-unlawful” for the children to “ move” the father to make such a will ? It ought, if the position of Swinburne, adopted by the Court below, be right. But we think it ought not. Other such cases may be supposed.

[2.] In our view then, the charge of the Court ought to be slightly modified, to express the law on this point — modified as follows : That though a person has a right, and it is lawful for him to* move a testator to make him his executor or give his .goods, even when the testator is a person of weak judgment and easy to be persuaded, and the legacy great; yet, if, in such case, a person does so move a testator, a very strong presumption arises that the moving is of a sort not right or lawful — a presumption only to be rebutted, as I think, by his bringing forward something sufficient to show the will to be such as a person of average mind, morals and family love might be supposed willing to make.

We agree, then, with the Counsel for the plaintiff, that some part of the charge of the Court did not fully express the law. But we will not undertake to say whether the verdict was or was not contrary to that part of the charge which did express the law, nor whether it is true or not, that the verdict was contrary to law, as in another one of the grounds on which the granting of the new trial was put, it is assumed to have been; and this wo will not do for the same reason for which we forebore to express an opinion as to whether the ground, that the verdict was contrary to evidence, was or was not true. To say whether a verdict is contrary to law or not, it is, in general, • necessary to say whether it is contrary to evidence or not. And this case is not an exception to that general rule.

[3.] The next of the grounds on which the granting of the new trial was put, that we shall notice, was “ the fact that while the cause was pending before the Special Jury, E. E. Crocker, Esq. one of the Counsel for respondent, on the night of the twenty-third March, entertained at his house two of the Special Jury to whom the said cause was submitted, and the respondent, Charles Walker.” This is undoubtedly a good ground. It is hardly in the power of affidavits wholly to free this affair from suspicion. It is not in the power of affidavits to show that the two Jurors were not consciously or unconsciously affected by it. In Walker vs. Walker, (11 Ga. R. 206,) this Court .says: “ when a Juror has been impannelled to try a cause, and during the trial and before he has rendered his verdict, he shall be entertained by either of the parties, at their expense, and the verdict be in favor of the party so entertaining the Juror, the verdict will be set aside.” “This rule is indispensably necessary to preserve the purity and integrity of Jury trials in our Courts, and cannot be too strictly enforced.”

This is not a case in which we can make a distinction be tween entertainment of a Juror by the. prevailing party, himself, and entertainment by his Counsel.

The next and last of the grounds on which the new trial was granted was, “that the paper in the hand-writing of Lewis Solomon, and found by the Jury in their room, was calculated to mislead the Jury and influence their finding.”

The Lewis Solomon referred to was the Ordinary, from whose judgment admitting the will to probate, the case on trial had, by appeal, been brought into the Superior Court. He was also the foreman of the Grand Jury, from which, after the' removal of him from it for cause, had been struck the Special Jury trying the case. The paper was found by the Jury in ..their room, soon after they met in it to consider of their verdict.

Under these circumstances, we think the Court was sufficiently forbearing, when it said that the paper “ was calculated to mislead the Jury and influence their finding.”

The affidavit of Solomon amounts to this: that he did not intend the paper for the Jury, and that he does not know how it got before the Jury. The affidavit of the foreman of the Jury is, that the paper “was found in the room of the Special Jury “ that said paper was found shortly after entering their room, before they made up their verdict, and was examined by all of the Jury, as this deponent remembers, before they deliberated on said cause and made up their verdict.”

This affair has an ugly look. We think the Court was right in making it a ground for a new trial. (Coke Litt. 227, b. 2 Hale’s P. C. 308. Metcalf vs. Dean, Cro. Eliz. 189.)

So, these two grounds for a new trial being sufficient, the Court was right, as we think, in granting a new trial. But nothing whatever is meant to be said, as to whether or not the verdict was contrary to the evidence or to the weight of the evidence.