#### *Elizabeth Jaggers v. Alexander Robinson, administrator of Estes, et al.*

Columbia,

May, 1850

The general rule is, that an issue shall be returned to the Court which orders it; and all objections to the finding must be made in the same Court. But where, on an appeal from the finding of an issue ordered by the Court of Appeals, that Court had not retained the Circuit decree, on which the issue was based, but had formally reversed it, the verdict, with the evidence, was sent to the Circuit Court, in order that the motion to set it aside should be heard by that Court, and a decree made upon it.

This was an issue sent down by the Court of Chancery, to try the question whether a certain deed, signed and sealed by Thomas G. Jaggers, conveying certain negroes to t:he plaintiff had been delivered. Every other inquiry was excluded by his Honor, Judge Evans, before whom the issue was tried, at Chester, Spring Term, 1850. The jury found the delivery of the deed, and defendant appealed, and moved for a new trial.

*M. Williams, Eaves*& *Thomson,*for the motion.

*Gregg*& *McAlilly,*contra.

Johnston, Ch.,

delivered the opinion of the Court.

Every member of this Court is perfectly satisfied with the finding of the jury upon the issue ordered. Indeed, two of us were of opinion, so long ago as when the case was before the Court of Errors, that the delivery of the deed was sustained by the proof, and should have been decreed. We were still more satisfied when the Chancellor’s decree of July, 1848, came before us: and the ordering of the issue was reluctantly consented to by one of the two, only to avoid the necessity of carrying a mere matter of fact before the Court of Errors.

*123It is, therefore, matter of infinite regret, that after all the cost to which the parties have been put by these proceedings, we are prevented, by a mere technical difficulty, from decidingv a point upon which we are entirely free from doubt; and are again compelled to send it to the Circuit Court.

We are of opinion the motion for a new trial cannot, in this case, (as it is situated,) be heard in this Court.

In *Ellerbe*v. *Ellerbe,*the Court of Appeals retained the decree appealed from, and ordered an issue upon some of the facts involved in the case. In that case the verdict was returned to that Court, and the motion for a new trial was made before it: and this process was repeated as often as four or five times, until the Court became satisfied upon the facts which were the subjects-of investigation.

In other instances, where the issue was ordered by the Circuit Court, the return has been made to the Court from which it emanated: and the motion for new trial has been heard there.

The general rule is, therefore, that an issue shall be returned to the Court which orders it; and all objections to the finding must be made in the same Court.

But in all the cases to which I have referred, the Court, whether circuit or appellate, has retained the judgment until the issue was disposed of. In this case, however, by inadvertence, this Court, instead of retaining the decree appealed from, until the issue was returned, and then affirming or altering the decree according to the impressions produced by the verdict, *reversed,*and thereby entirely annihilated that decree; so that there is nothing now before us upon which to exercise appellate jurisdiction.

There is now no circuit decree: and we are compelled to send the verdict to the Circuit Court, in order that one may be made upon it.

The circuit decree of July, 1848, is entirely satisfactory to us, and would be now affirmed, if it had not been formally reversed; but we are, by this mere technical difficulty, forced to remand the case, with the evidence now taken, and the verdict, to the Circuit Court, that it may hear the motion for new trial; and, if that should be refused; give a decree on the case as it now stands.

And it is so ordered.

Dargan, Ch., concurred.

Dunkin, Ch.

I do not concur in the intimation that the decree of the Appeal Court, May, 1849, reversing the circuit decree, was in any manner the result of inadvertance". Nor-do I think that the correctness-of that decree is properly now the subject of review. The decree of the Circuit Court was reversed because of the error of the presiding Chancellor in *124refusing the motion for an issue at law. This was the snb-jec(; ma[(er 0f appeal, as was demonstrated on the authorities ‘cited. If the Chancellor had.refused to receive testimony whjch, ja the judgment of the Court of Appeals, was competent and might be important, the decree would be reversed, and a rehearing *de novo*ordered* It might be that, in the sequel, the evidence, when heard, would not change the result. But this is proper, in the first instance, for the consideration of the Circuit Court. The delay and expense consequent upon any error in the Circuit Court are greatly to be regretted, but are sometimes unavoidable in the administration of justice.

I concur in the opinion that the motion to set aside the verdict should be addressed to the Circuit Court.