Kirby v. . Newsance , 9 N.C. 105 ( 1822 )

Henderson, Judge.

I cannot perceive to what acts of fraud the Jury refer in this verdict. The fraud charged, is in representing that the deed was in pursuance of, and according- to the contract of the parties, ■when in fact it was not. The Jury find that the deed ■was obtained by fraud, as charged in the bill, but not by misrepresentation. It appears to me, therefore, that it involves a contradiction, and so far from satisfying the conscience of the Court, as to the facts of the transaction, it rather clouds and obscures them. This part of the verdict should, therefore, he set aside, and the question submitted to another Jury $ for the Court should not have proceeded to a decree, however importunate the counsel for the Complainant might have been, until all the important facts were either admitted or found by a Jury. The order of dismissal must, therefore, be reversed, and the cause remanded, with directions to submit the issue before mentioned, to another Jury. Neither party to recover their costs in this Court.

TaOíGR, Chief-Justice, and Ham., Judge, concurred.