Page:United States v. Samperyac.pdf/9

126 Rh   a feigned issue in this case should be overruled, for the following reasons:—

1. Because it rests in the sound discretion of the chancellor to award a feigned issue or not; and where the truth of the facts can be satisfactorily ascertained by the chancellor, without the aid of a jury, it is his duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. Dale v. Roosevelt, 6 Johns. Ch. Rep. 255.

2. Because the chancellor, when he directs such issue, does it upon the ground that the evidence produced before him in the record is not sufficient to enable him to arrive at a satisfactory conclusion; he, therefore, directs the facts to be tried by a jury, for the purpose of collecting additional evidence; which additional evidence, when so collected, the chancellor considers in connection with that already existing in the records of the chancery court. Bootle v. Blundell, 19 Vesey, jr. 500; 1 Archbold's Practice, 347, 348, 349.

3. Because the verdict of the jury upon such feigned issue, is not conclusive upon the chancellor; he may have it tried again and again, if these verdicts are not agreeable to his sense of justice; or he may even decree contrary to a verdict, if he thinks proper. Moris v. Davis, 14 Sergt. & Lob. 380.

4. Because the bill in this case has been taken for confessed, and every distinct and positive allegation in it must be taken as true. Williams v. Corwin, 1 Hopkins, 471.

Motion overruled.

On the 7th of February, 1831, the court decreed that the former decree in favor of Bernardo Samperyac against the United States, for four hundred arpens of land, pronounced and recorded at the December term of this court in 1827, be reversed, annulled, and held for nought; and that Stewart pay his own costs. Decrees of reversal were pronounced in the other cases.

Samuel C. Roane, district attorney, and William S. Fulton, for the United States.

Chester Ashley, Robert Crittenden, William Trimble, and William Kelly, for defendants.

J, J.—This is a bill of review, filed by Samuel C. Roane, attorney of the United States for the Territory of