Hoxworth v. Miller

7 Pa. 458

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1848
• Status: Published

Opinion

Per Curiam.

Common justice requires that this cause be put to another jury, on issues which may enable it to find the exact truth; but as the issue before us was framed, it is impossible to reverse the judgment, for the direction was right. Yet as the will might be good, and the codicil bad, separate issues ought to have been formed to try the validity of each, instead of coupling them in a single one, which did not admit of division. The record is therefore remitted, with direction to set aside the judgment and proceedings, and to direct the counsel to frame an issue to try' the validity of the will, and another to try the validity of the codicil, in separate counts of the declaration. In any other proceeding, perhaps, we would not feel ourselves at liberty to pursue a similar course; but as a feigned issue is merely a contrivance to take the verdict of a jury, the courts have an unlimited discretion in directing the use of it.

Record remitted.