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Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

47. 85. If any action be brought on a bond or other writing, filed in any suit brought thereupon in any other court of this commonwealth, it shall be sufficient for the plaintiff to file with his declaration a copy of such bond or other writing, attested by the clerk of the court in which the original may be filed; and the defendant or defendants shall be obliged to plead thereto, in like manner as if the original bond or writing was filed, and such copy shall be admitted as evidence on the trial.(rr) If, however, the defendant or defendants shall plead, that the original bond or writing is not his, her or their deed, the clerk of the court having such original paper in his custody, shall, on being summoned as a witness, attend with the same, on the trial of the issue, for the inspection of the jury. Alt. from 1792, c. 66, R. C. [See Act of Feb. 15, 1828, c. 27, p. 22, Sup. R. C. c. 205, p. 265, which provides, "that every appeal bond, injunction bond, or other bond required to be given by one party to the other in any appeal or other action, may, on the decision of the cause in favour of the obligee in the bond, be delivered by the clerk having custody thereof, to the obligee or his legal representative, who shall give a receipt for the same: and whenever a suit shall be brought upon any bond given in open court, or to the clerk in his office, or by any public officer to the governor of this commonwealth, a copy of such bond, attested by the clerk of the court, or of the council, if the bond be in possession of the executive, shall be admitted as evidence, to have the same effect as the original, unless the defendant shall plead non est factum. 2. That when any original paper filed in a cause decided in any court in this state, shall be required as evidence in any other court, it shall be lawful for the court in which the same may be filed, to cause such original paper to be delivered to the party requiring it as aforesaid, and a copy thereof to be filed in its stead; and to make any other order which may be proper in respect to the original, in order to prevent the improper use thereof."]

48. 86. In every action of indebitatus assumpsit, the plaintiff shall file, with his declaration, an account, stating distinctly the several items of his claim against the defendant;(ss) and, in failure thereof, he shall not be entitled to prove, before the jury, any item, which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character thereof. Rev. 1819.

(rr) Where a bond is filed in a suit against the executor of the obligor, in one court, a copy may be declared on against the heirs, in another court. The original need not be produced, unless the defendants crave oyer of the original, or object to the copy as incorrect, or plead there is no such bond; in either of these cases, the original may be produced by a subpæna duces tecum, and this on general principles. Waller's ex'r v. Ellis et al. 2 Munf. 88.

(ss) For the necessity of this provision, see the remarks of Pendleton, J. in Wood v. Lutteral, 1 Call, 239; and of Roane and Brooke, Juds. in Isom v. Johns, 2 Munf. 275, note (1). And for the probable construction thereof, see Tidd's Prac. 534; Phillipps's Evid. 145

149.

The use of a bill of particulars, is to prevent the inconveniences which might otherwise arise from the general and undefined statements in the plaintiff's declaration, and to apprise the defendant of the particulars of the demand which the plaintiff has against him. If it gives sufficient information to the opposite party to guard him against surprise,

it answers the purpose for which it was intended, and will be sufficient, though it may be in some respects, inaccurate. Phillipps's Evid. 147, and the authorities cited.

The object of this section was [is] to give the defendant full notice of any claim which might be insisted on before the jury, under the general counts in the declaration. The words of the section are "full notice of the character thereof;" that is, whether the claim was for goods, wares and merchandize-for money laid out-or for money received to the use of the pltff. &c. &c. The item in the account [merchandize per bill, due 10th July 1819, $480 60] which is objected to, certainly gave this notice; and though upon the evidence to the jury, it was made up of many articles [of which the account gave no notice] the character of the claim is sufficiently designated; and the proof that the articles included in it, were sold and delivered to the defendant by the plaintiff, was properly admitted by the court to the jury. Pr. Pres't Brooke in del'g ct. op'n in Moore v. Mauro, 4 Rand. 488, 491-2. See 9 Peters, 541.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

49. 88. The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or of fact, (tt) as he shall think necessary for his defence. 1792, c. 66, R. C.; 4 and 5 Ann. c. 16.

50. § 89. In controversies affecting lands, tenements or hereditaments, possession of part shall not be construed as possession of the whole, when an actual adverse possession can be proved.(uu) 1792, c. 76, R. C.

51. 91. Interpreters may be sworn truly to interpret, when necessary. 1789, c. 28, 13 Stat. Larg. 37, and Ibid.

52. 93. Papers read in evidence, though not under seal, (vv) may be carried from the bar by the jury. Dec. 4, 1789, c. 28, 13 Stat. Larg. 37; Ibid. 53. § 94. Any instrument, to which the person making the same shall affix a scroll, by way of seal, (ww) shall be adjudged and holden to be of the same force and obligation, as if it were actually sealed. Ibid.

54. 95. Every person desirous(xx) of suffering a non-suit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar. Ibid. 55. 96. New trials may hereafter be granted, as well where the damages Xare manifestly too small, (yy) as where they are excessive. Rev. 1819.

(tt) The plaintiff in replevin, but not the defendant, Vaiden et al. v. Bell, 3 Rand. 448, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence, though such several matters, be inconsistent with one another. Waller's ex'r v. Ellis et al. 2 Munf. 101-4; Syme v. Griffin, 4 H. & M. 277. See Eppes's adm'r v. Bagley's adm'r, 4 Munf. 466; Jones v. Stevenson, 5 Munf. 1.

But a plaintiff cannot reply and demur to the same plea. Lang v. Lewis, (Jan. 27, 1823,) 1 Randolph.

Where there is an issue of fact, and also a demurrer, the demurrer should be first decided. Green v. Dulaney, 2 Munf. 518; Jones v. Stevenson, 5 Munf. 7.

The defendant may plead and demur to the whole declaration. Stone & Co. v. Patterson, 6 Call, 71; Furniss et al. v. Ellis & Allan, 2 Brock. R. 14.

Although according to the English practice a defendant in equity cannot demur and plead, or demur and answer to the same matter, for the answer will overrule the demurrer, &c., yet the rule is not applicable in Virginia. Here a defendant may answer and demur to the same matter of a bill at the same time. Dissentiente Tucker, P. Bassett's adm'r v. Cunningham's adm'r, 7 Leigh, 402.

(uu) See Green v. Liter et al. 8 Cranch, 250; Potts's lessee v. Gilbert, Cir. Ct. U. S. Penn. 1 Journal of Jurisprudence, 256.

(vv) See Alexander et al. v. Jameson et al. 5 Binney, 238.

(ww) See tit. CONVEYANCES, note (a.)

A scroll affixed to an instrument has the force and obligation of a seal when it appears by the instrument that the person making the same affixed the scroll by way of seal. Parks v. Hewlett &c. 9 Leigh, 511.

Where it is stated at the foot of an instrument of emancipation that it was signed,

sealed and acknowledged in presence of two attesting witnesses, and the instrument is afterwards duly proved by the witnesses in the county or corporation court, it sufficiently appears that the person making the instrument affixed the scroll by way of seal. S. C.

(xx) The court has no power to direct a nonsuit, however destitute the plaintiff may be of a right to recover. They may advise it, but the plaintiff has a right to refuse, and the court can no otherwise protect and enforce their opinion, than by awarding a new trial, in case the jury find against their instruction. Ross v. Gill et ux. 1 Wash. 89; Thweat et al. v. Finch, 1 Wash. 219-20; Girard v. Getting, 2 Binney, 234; Irving v. Taggart et al. 1 Serg. & Raw. 360; Doe on the demise of Elmore v. Grymes et al. 1 Peters's R. S. C. 469; Crane v. Lessee of Morris et al. 6 Peters, 598. But see Pratt v. Hull, 13 Johns. R. 334; Foot v. Sabin, 19 Johns. R. 154, 158, which have been correctly remarked on, in U. S. Law Journ. Sept. 1822, p. 189.

(yy) I apprehend the rule to be now [1816] settled, that new trials in all cases, whether sounding in contract or in tort, whether for excess or smallness of damages, depend, as they ought, on the sound discretion of the court. Williams arg.—Roane, J. Have not verdicts in actions for personal torts, been likened to verdicts in criminal cases; in which, if a verdict be in favour of the defendant, however improperly, the court cannot interfere? See Ligon v. Ford, 5 Munf. 13; The King v. Mann, 4 Mau. & Selw. 337.

Ex parte Baily, 2 Cowen, 479. But this section changed the law-it authorizes the granting a new trial, in such an action as this, (slander,) when the damages found by the jury are manifestly too small;-when a new trial is granted for such cause it is not necessary to state on the record the grounds

56.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

97. Not more than two(zz) new trials shall be granted to the same, party, in the same cause. 1789, 13 Stat. Larg. 37; 1792, c. 76, R. C.

for awarding it, since it will be presumed that the order of the court upon a subject appearing to be clearly within its jurisdiction was correct, unless the contrary appear. Rixey v. Ward, 3 Rand. 52.

A new trial will not be granted on account of excessive damages, unless the jury have mistaken the principles of law, which ought to regulate damages, or have been guilty of some gross error, which shews an improper feeling or bias on their part. Thurston v. Martin, 5 Mason, 497.

The ground for a new trial, that the damages are excessive, cannot be first taken in an appellate court. Humphrey's adm'r v. West's adm'r, 3 Rand. 516.

By act of March 6, 1840, "no new trials of any case arising upon a warrant shall be granted by any justice of the peace, except by him who rendered the judgment, unless in case of the death, resignation or removal of such justice, in which event any other magistrate may grant the same, nor in any case after the expiration of thirty days from the date thereof; nor unless the opposite party shall have had five days previous notice of the time and place of the application for such new trial. Acts 1839-40, c. 58, § 2, p. 50.

(zz) See the remarks of Lyons, J. as to the power of a court of equity to relieve, in the cases where two juries persist in disregarding the opinion of the court on a point of law, or its recommendation to find a special verdict. Picket v. Morris, 2 Wash.

275.

A new trial on the ground that the verdict is contrary to evidence, ought to be granted only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers. See Ross v. Overton, 3 Call, 319; Carstairs v. Stein, 4 Mau. & Selw. 199-200.

A new trial asked on the ground that the verdict is contrary to evidence, ought to be granted only in the case of a plain deviation from right and justice; not in a doubtful case, merely because the court, if of the jury, would have given a different verdict. And, where there is conflicting testimony, and the credibility of witnesses involved, the power of the court to grant a new trial ought to be very cautiously exercised. Brugh v. Shanks, 5 Leigh, 598; Mays v. Callison, 6 Leigh, 230.

A verdict ought not to be set aside, as being contrary to evidence, unless the inference which the jury drew from the evidence was plainly not warranted by it. Brown v. Handley, 7 Leigh, 119; Mahon v. Johnston, Ib. 310.

And, such a motion ought to rest on the evidence actually given at the trial, exclusive of all other. It is pointed to, and bounded by the evidence used on the trial. A new trial comes in the place of an attaint of the jury; and it would have been highly unjust to have punished the jury on account of evidence not before them. It would relieve parties against ther own laches, and lay the foundation of increasing motions for new trials. Street v. St. Clair, 6 Munf. 457, 458. See the opn. of Brackenridge, J. in M'Laughlin's lessee v. Maybury, 4 Yeates, 538-546.

If a party believes he can procure other testimony, he should move for a continuance of the cause; and not wait until there is a verdict against him, and then bring it forward as ground for a new trial, after having taken his chance with the jury. Gordon v. Harvey, 4 Call, 450.

As an appellate court will review an order of an inferior court overruling a motion for a new trial, and reverse the proceedings of a new trial improperly refused, so it will review an order granting a new trial, and reverse proceedings, if improperly granted,and if judgment be reversed, on ground that new trial has been previously improperly granted, the appellate court will examine the proceedings of the trial set aside, and affirm or reverse them, as justice may require. Pleasants v. Clements, 2 Leigh, 474; The People v. Sup'r Ct. N. York, 5 Wendell, 114; 10 Wendell, 285. S. C.

A new trial, asked on the ground that the verdict is contrary to evidence, is denied: the opinion of the court which tried the cause, on such a point, is entitled to peculiar respect in an appellate court. Brugh v. Shanks, 5 Leigh, 598.

It is a general principle, that the discovery of other evidence, is not a good ground for a new trial, (not even to authorize a court of equity to interfere,) if the evidence might have been submitted to the jury, by the exercise of due diligence. See De Lima v. Glassell's adm'r, 4 H. & M. 369.

On motion for a new trial, on the ground that new and important evidence has been discovered since the verdict-motion overruled, and a bill of exceptions is filed, containing the party's affidavit, and that of the new witness on whom he relies, which affidavits shew the nature of the evidence, its materiality, and the recent period at which it became known to the party; but the bill does not contain the facts, which in the opinion of the court below, were proved at the trial, nor does it set forth the evidence given at that trial: Held, no sufficient ground appears, to authorize an appellate court to reverse the judgment below, and award a new trial. Callaghan v. Kippers,

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

7 Leigh, 608; Knox v. Work, 2 Binney, 582, and note (a); Bond v. Cutler, 7 Mass. R. 205; Moore v. The Phila. Bank, 5 Serg. & Raw. 41; Williams v. Baldwin, 18 Johns. R. 489; The People v. Superior Court of N. York, 5 Wendell, 121; 10 Wendell, 285291, &c.; Harrison v. Harrison, 9 Price, C. R. 89; Shobe v. Bell, 1 Rand. 39; The King v. Wooler, 6 M. & S. 366. It is a ground for a new trial, if a juror before being sworn, expresses a determination to give the verdict one way. Ramage v. Ryan, 9 Bing. 333.

A new trial ought not to be granted, to enable the party against whom the verdict is rendered, to impeach the credit of a witness, examined at the trial. Ford v. Tibly, 2 Salk. 653; Bunn v. Hoyt, 3 Johns. R. 255; Duryee v. Denison, 5 Johns. R. 248; Brugh v. Shanks, 5 Leigh, 598.

An affidavit of a party, that he failed to summon material witnesses, at the trial, owing to advice of counsel, that their testimony was not necessary-no grounds to set aside verdict, and grant a new trial. Pleasants v. Clements, 2 Leigh, 474.

A motion for a new trial on the ground of a misdirection may be made to the court who gave the direction. The court, upon a deliberate motion for a new trial, supported by argument and authority, may retract a hasty opinion expressed in the progress of the trial. Guerrant v. Tinder, 1 Gil. 41; Tilghman, C. J. 1 Serg. & Raw. 452. A different opinion was expressed by Pendleton, J. in Johnson v. Macon, 1 Wash. 5; 4 Call, 367, S. C.

A motion for a new trial, after verdict, is addressed to the sound discretion of the court; and if, on the whole case, justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. The reason is, that the application is not matter of absolute right in the party, but rests in the judgment of the court, and is to be granted only when it is in furtherance of substantial justice. M'Lanahan et al. v. The Universal Ins. Co. 1 Peters's R. S. C. 183.

A new trial ought never to be granted, where it appears that the party asking it, has had a fair trial on the real merits of the case, and that justice has been done. Goode v. Love's adm'rs, 4 Leigh, 635.

A new trial will not be granted on the ground that evidence has been admitted, which ought to have been rejected, if, exclusive of such evidence, there be enough to warrant the finding of the jury. Doe, dem. lord Teynham v. Tyler, 6 Bing. 561. Sed vide Marquand v. Webb, 16 Johns. R. 89; Osgood v. The Manhattan Ins. Co. 3 Cowen's R. 612; and Anthoine et al. v. Coit, 2 Hall's Rep. 40. But see Crease v. Barrett, 5 Tyrech. 458; Baron de Rutzen v.

Farr, 4 Adolp. & Ellis, 53: Holding, that where improper evidence is received, and a verdict given for the party adducing it, the court will grant a new trial, although there be other evidence to the same point in favour of the same party; unless they see clearly that the improper evidence could not have weighed with the jury, or that the verdict, if given the other way, would have been set aside as against evidence.

In an action on the case, if there be an office judgment against the defendant, with a writ of enquiry, and afterwards, without any plea in the cause, the jury be sworn as if there were an issue, and a verdict be found for the defendant, the verdict will be set aside, and a new trial directed. M'Million v. Dobbins, 9 Leigh, 422; see Rohr v. Davis et al. Ibid. 30; and Fisher v. Vanmeter, Ibid. 18.

To meddle with the verdict of a jury, on the evidence of some of the jurors, is a delicate business, and should be proceeded in with caution, to prevent the mischief of the jurymen being tampered with. If the verdict be founded on a mistaken apprehension of the law, (as that the opinion of the majority was to prevail &c.) proved to have been thus found, by a great majority of the jury, and not contradicted by any one, a new trial should be granted. Cochran v. Street, 1 Wash. 79. Affidavits of jurors may be received to shew, that they adopted a principle in estimating damages, not allowed by law, which principle was laid down by the counsel, and not contradicted by the court, thereby operating as a direction by the court, which, if formally given, would have been a misdirection. Sargent v. 5 Cowen, 106; Ex parte Caykendoll, 6 Cowen, 53; see Hague v. Stratton, 4 Call, 84. But the affidavits of two of the jurors, that they were influenced by information given by one of their own body, in the jury room, were not admitted to set aside the verdict. Price's ex'r v. Warren, adm'r of Fuqua, 1 H. & M. 385; see Cluggage's lessee v. Swan, 4 Binney, 150, and authorities cited in the note (d), 155; Ritchie v. Holbrooke, 7 Serg. & Rawle, 458; Daris v. Taylor, 2 Chitty's R. 268; Huidle v. Birch, 8 Taunt. 26; Alexander v. Byron, 2 Johns. Cas. 318; Jenkins v. Price, 1 Nott & M'Cord, 153; Hartwright v. Badham, 11 Price, 383.

A court ought to hold a stricter course towards plaintiffs in ejectments moving for new trials than towards defendants; yet, where a verdict in favour of the defendant in ejectment is founded in mistake and produces injustice, it is both the right and duty of the court to grant a new trial. Deems v. Quarrier, 3 Rand. 475.

After verdict for the plaintiff, the defendant moved for a new trial, and also filed errors in arrest of judgment. The court,

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

57. § 98. All declarations, pleas, evidences and other papers, relating to any cause in court, shall be carefully preserved by the clerk, and they shall be all filed together in the office. Oct. 1660-61, act 26, 2 Stat. Larg. 27; Mar. 1661-2, act 23, Ib. 71; Ibid.

58. 99. When any cause shall be finally determined, and an appeal, writ of error, or supersedeas shall be granted to the judgment, and in all causes where the title or bounds of land shall be determined, whether an appeal, writ of error, or supersedeas, be granted from the judgment or not, it shall be the duty of the clerk to enter in books to be kept for that purpose, all the pleadings and papers filed as evidence therein, and the judgment thereupon, so as to make a complete record thereof: and those wherein the title or bounds of land is determined, shall be entered in a separate book. From 1792, c. 66, 67, R. C.; Jan. 1805, c. 61, ed. 1808.

59. 111. All things herein contained, 'not restricted by their nature, or by express provision to particular courts,' shall be the rules of decision and proceeding in all courts whatsoever within this commonwealth.

Act of February 25, 1819-January 1, 1820. R. C. ch. 174.

60. 6. Where the auditor, acting according to his discretion and judgment, shall disallow or abate any article of demand against the commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the high [superior] court of chancery, (b) or the superior court of law holden in the city of Richmond, according to the nature of his case, for redress; and such court shall proceed to do right thereon; (c) and a like petition shall be allowed, in all other cases, to any other person who is entitled to demand against the commonwealth, any right in law or equity.(aaa)(d) Oct. 1778, c. 17, § 5, 9 Stat. Larg. 540; Dec. 1792, c. 85, § 6, R. C.

without deciding on the motion for a new trial, sustained the motion in arrest, and entered judgment for the defendant. This judgment is reversed by the court of appeals, and final judgment entered for the plaintiff, without regard to the motion for a new trial, which the defendant must be considered to have waived by moving in arrest of judg. ment. It is well settled that a party cannot move for a new trial, after a motion in arrest, (4 Barn. & Cres. 160, [Philpot v. Page,]) and though in this case, the motions were probably simultaneous; yet, as the party has, on his motion, actually had the judgment arrested erroneously, he cannot now go back to his motion for a new trial. Sims v. Alderson, 8 Leigh, 479, and Tucker, P. P. 487.

(b) Although the statute is in general terms, and seems to give an election to the party, in all cases, to petition either the chancery or superior court, I should incline to think, that the effect of the statute was to refer cases, which, if they concerned individuals would be most proper for a court of law or of equity, according to their circumstances, either to the one or the other, as might be most proper upon that principle. Pr. Green, J. in Shields v. The Com'th, 4 Rand. 545.

(c) A claim against the com'th is presented to the auditor, which, tho' just is yet doubt

ful, and, therefore, the auditor disallows it; and an appeal is taken from the auditor to a court of justice, which adjudges the claim against the com'th: Held, in such case the court ought not to allow interest. Quære, should interest be allowed, in any case, ag'st com'th? Auditor v. Dugger et al. 3 Leigh, 241.

(aaa) The remedy given by this section, comprehends every right in law and equity, which any person may be entitled to demand of the commonwealth, arising under some law or resolution of the general assembly. Com. v. Pierce's adm'r, 4 Rand. 432; See Atto. Gen. v. Turpin, 3 H. & M. 548, and The Com. v. Beaumarchais, 3 Call, 122.

If a contract is made with the executive, under an authority given them by act of assembly, which directs that the auditor shall issue warrants on the orders of the executive, and they refuse to give such orders, the party aggrieved may resort to the courts by original petition, and have his rights enforced by their judgment. Shields v. The Com'th, 4 Rand. 541.

(d) By act of March 20, 1838, c. 14, Ses. Acts, p. 27, it is provided:

§ 1. That it shall be lawful for all persons having claims against the commonwealth, legal or equitable, and whether the amount be liquidated or not, to present them to the audi

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