
    Richmond.
    Rust & als. v. Ware.
    1849. April. Term.
    
    (Absent Cabell, P.)
    1. Judgment at law enjoined on tbe ground of mistake by the jury, ascertained by after discovered evidence.
    2. The subject of the action being accounts, the Court of equity will not direct a new trial at law; but will refer the accounts to a commissioner ; and will itself give the proper relief.
    In February 1842, Josiah W. Ware instituted an action of assumpsit in the Circuit court of Fauquier county against James C. Ford, William Rust, Alfred Rust and Richard K. Littleton, late partners under the style of James C. Ford Sy Co., to recover the amount of an account for grain delivered by the plaintiff into the mill of the defendants. The process was served on all the defendants but Ford, who was returned no inhabitant ; and at the October term of the Court, there was a verdict and judgment for the plaintiff for 768 dollars 42 cents, with interest thereon from the 28th of January 1839 until paid, and the costs.
    In October 1843, the defendants in the action at law, applied to the Judge of the Circuit court of Fauquier county, for an injunction to the judgment; which was awarded. In their bill, they charge that upon a fair settlement of the accounts between them and Ware, they will be found but little indebted to him. That the business of the firm was carried on in the county of Clarke. That Ford was the acting member of the firm, to whom its affairs were almost exclusively known. 'That at the time the judgment was obtained against them, he resided in another State, and was insolvent, and the defendants at law were unable to procure his personal attention and explanations of the accounts: That without Ford's explanations, they could make no defence at law.
    They further charge, that since the judgment was rendered, William Rust had discovered such information and papers in relation to the accounts between Ware and the firm of James C. Ford & Co. as shew clearly the gross injustice of the judgment; and which no reasonable diligence could have brought to light prior to the judgment. That on making discovery of the said papers and information, Ware is satisfied and admits that the sum due to him from the said firm, does not exceed 443 dollars; thus acknowledging an error of about 325 dollars. That this sum the said William Rust believes is more than is fairly due to Ware from the firm; and that upon a rehearing or new trial of the cause, little will be found due to him; as said Rust has heard since the judgment was rendered, that Ware claimed before the institution of his suit, only about 100 dollars as due to him from James C. Ford & Co. Ware is called oil to answer fully each and every allegation of the bill, and he is especially required to answer the charge, that he is satisfied and admits that the sum due to him from the said firm does not exceed 443 dollars. The prayer of the bill is for an injunction to the judgment, for a new trial or a reference of the accounts to a commissioner, and for general relief.
    
      Ware answered the bill. He said that during the years 1836, ’37 and ’38, he delivered into the mill of James C. Ford & Co. a large quantity of grain. That some time afterwards, Ford & Co. discontinued their business; and their mill books were placed for settlement in the hands of P. M. M’Cormick, as their agent. That when they discontinued their business, they were largely indebted to him for grain delivered into their mil], for the greater part of which he held their receipts, and not being able to come to an amicable settlement with them, he in the fall of the year 1841, forwarded said receipts and other evidences and statements of his demands, to his attorney in Fauquier, for suit and collection. That the suit was brought and was on the dociiet 0f the Court for trial at the May term 1842. That in the spring of 1842, he for greater certainty obtained from M’Cormick a statement from the mill books of the debits and credits contained therein arising upon his dealings aforesaid, and forwarded the same to his attorney for the purposes of his said suit. That at the May term of the Court, the plaintiff Littleton having examined the papers aforesaid, and expressed to this respondent’s attorney a desire to examine further into the case and to make enquiries of James C. Ford, the case was by the consent of said attorney, continued until the next term of the Court; at which term the verdict and judgment was rendered in favour of respondent.
    The defendant in further answering said, that he did not know, and therefore did not admit that the plaintiffs could not procure the explanations of Ford to aid them on the trial at law; and he denied that Ford’s personal attention or explanations were at all necessary or material to a full defence at law of said action. That the mill books were doubtless intended by Ford to commemorate all the transactions between the firm and respondent ; and after the lapse of time which 'had intervened since the date of the transactions, it was not to be expected he could give any explanations touching the accounts other than such as the books presented; and they were in the hands of the plaintiffs’ agent, and at all times accessible to them. That the damages assessed in the action was the balance found due to him upon a comparison of his receipts and the statement from the mill books furnished as aforesaid by M’Cormick. That it is possible that in ascertaining the balance there may have been error in the calculations, and injustice thereby done to the plaintiffs; but in regard to the allegation that since the judgment was rendered, William Rust 
      had discovered such information and papers in relation to said accounts as shew clearly the gross injustice of the judgment, and which no reasonable diligence could have brought to light prior to the judgment, the respondent positively denies it, and charges that all the information and papers in relation to said accounts which plaintiffs had when they filed their bill, were accessible to them prior to the judgment; and could have been produced before the jury by the exertion of the most ordinary diligence. That the receipts and statement aforesaid, with the letters enclosing and explaining them, were filed with the proceedings in the cause, and accessible to the plaintiffs and their counsel, and shewed them before the trial, the nature and ground of his claim; and in fact, it was by an examination of these papers subsequent to the trial of the case, that said William Rust pretends to have discovered the error of 325 dollars, which he avers the respondent admits. And he therefore insisted that the plaintiffs were precluded by the said verdict and judgment from entering upon the enquiries concerning said accounts suggested in their bill; that all matters in issue in that case were finally adjudicated; and he relied upon that judgment in bar of the present demand.
    The defendant then went on to state that being at Fauquier courthouse at the October term 1843 of the Circuit court, he met with the complainant Wittiwm Rust, and at his request, attended on the examination of the papers in the action at law. That among said papers was one containing a statement of said accounts prepared in Court for the use of the jury when the case was tried, shewing the balance for which the verdict was found. That to the first two items of the said statement charged in the years 1836 and 1837, the said Rust objected, notwithstanding mill receipts for those items were filed, because in the statement of debits from the mill books was found an item of 60 dollars 27 cents, said to be the amount brought from book A up to and in-eluding January 28th, 1837; the said Rust insisting that from the face of the paper, it was to be presumed that the items in the statement charged in the years 1836 an¿ 1837, were entered in the account on book A, from which the said balance was taken. That Rust also objected to the item of 180 dollars 50 cents, charged in the said statement under date of February 17th, 1838, being for one hundred and eighty bushels and thirty pounds of rye, and corresponding with a mill receipt among the papers. That this objection was founded on the suggestion that three other items charged in the same statement, one for 89 dollars, under date of February 28th, 1838—one for 82 dollars, under date of January 29th, 1838, and one for 9 dollars 50 cents, under date of February 17th, 1838, all purporting to be for rye delivered at those dates, and amounting in the aggregate to 180 bushels 30 pounds, which said charges were taken from the list of credits furnished by M’ Cormele from the mill books, were intended to represent the same 180 bushels for which the aforesaid receipt was given. That respondent had no recollection of the items which composed the account, but from the statements and representations of Rust, thought it probable that errors had been committed in the particulars stated ; and being in want of money at the time, expressed his willingness to make a deduction of the alleged errors, if the said Rust would pay the residue in cash, or forthwith enter into a forthcoming bond for the amount, and confess judgment thereon at the then term of the Court; but that the said Rust refused to accede to the proposition. That it was not true he had ever said that not more than 100 dollars was due to him on the said accounts, and that under any statement of them, the balance due to him could not be reduced below the sum he had expressed himself as aforesaid willing to receive; if indeed, upon a fair exposition of facts, it could be reduced to that sum; but whatever may be the facts as to that matter, the plaintiffs were precluded from enquiring into the supposed errors by the verdict and judgment at law.
    A witness, Daniel Feagans, stated that the year after J. C. Ford Co. discontinued the milling business in the county of Clarke, the defendant Ware came to the said mill, then occupied by Ford and the witness, and commenced a conversation with the witness on the subject of a mill account which he had against Ford & Co.; and in that conversation, Ware said his mill account against said firm was about 100 dollars. And witness said William Rust came to the knowledge that the witness could prove the facts aforesaid, long since the judgment of Ware against Rust and others. And it was proved by another witness, that on the occasion when Rust and Ware examined the papers in the action at law, Ware stated that 443 dollars seemed to be the true amount which was due from J. C. Ford & Co. to him.
    The cause came on to be heard in the Court below in October 1844, when the Court dissolved the injunction and dismissed the bill with costs, whereupon the plaintiffs applied to this Court for an appeal, which was allowed.
    
      Robinson, for the appellants,
    to sustain the application for relief, relied upon Harrison v. Nettleship, 8 Cond. Eng. Ch. R. 65; Gainsborough v. Gifford, 2 P. Wms. 425, which was cited with approbation in Barrett v. Floyd, 3 Call 460; and in Pickett v. Morris, 2 Wash. 255; Mason v. Nelson, 11 Leigh 227.
    
      Morson, for the appellee,
    to shew that equity would not give relief in such a case, referred to Donally v. Ginatt, 5 Leigh 329; Morgan v. Carson, 7 Leigh 238; Haden v. Garden, Id. 157; Faulkner v. Harwood, 6 Rand. 125; Arthur v. Chavis, 4 Id. 142; Pleasants v. Clements, 2 Leigh 474; Law v. Law, 2 Gratt. 366.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion that the case made by the pleadings, proofs and admissions of the answer, shewed a mistake and miscalculation on the part of the jury, which, if discovered in time, would have furnished good ground for a new trial; and such mistake and the after discovered testimony entitled the appellants to relief in equity; and the Circuit court, instead of dissolving the injunction and dismissing the bill with costs, should have overruled the motion to dissolve, and referred the cause to a commissioner to ascertain the real amount due to the appellee; permitting the judgments to stand as a security for the sum ascertained to be actually due. And the Court is therefore of opinion, that said decree was erroneous, and the same is reversed with costs to the appellants, and the injunction is reinstated and the cause remanded with instructions to direct an account to ascertain the true amount which the appellee was entitled to recover; and for further proceedings in order to a final decree.  