
    *Markham v. Boyd.
    August Term, 1872,
    Staunton.
    Record in Chancery Suit—Presumed Correct.- -Upon a bill for a new trial of an action at law, on the ground of after-discovered evidence, the record of the case at law not showing what evidence was before the jury, or what facts were proved on the trial, and the chancery record not giving that information; and the same judge who tried the cause at law. having dissolved the injunction and dismissed the bill, the appellate court has not the materials to enable them to review the decree; but must presume it is correct.
    In Rebruary 1855, William W. Boyd brought an action of ejectment in the Circuit court of Botetourt, against Jesse R. Markham, to recover a tract of four hundred and twenty-five acres of land, on Jennings creek, in said county. The case was tried in June 1857, when there was a verdict for the plaintiff. Markham thereupon moved the court for a new trial; but the court overruled the motion and rendered a 'judgment ¡HmoíAiüg to tile vei&toti No exception was taken to the refusal of the court to grant a new trial; and therefore, the record did not show what evidence had been introduced in the trial of the cause.
    In January 1858, Jesse R. Markham filed his bill ill the same court, against Wm. W. Boyd, in which he prayed for an injunction to the judgment in the ejectment case, and for a new trial of the cause, on the ground of after-discovered evidence. He afterwards filed an amended, and then a supplemental, bill. The case made by the bills was, that the land mentioned in the verdict was part of a thousand acres granted to Henry Banks on the 3d of August 1786; and Markham claimed the same under John Milner, who purchased of *Wm. B. Banks; and Wm. B. Banks claimed to have purchased of Henry Banks. At the trial Markham offered in evidence the copy of the deed from Henry Banks to Wm. B. Banks, which was upon the records of the County court of Botetourt; but it was objected to by Boyd, upon the ground that it had not been properly certified and recorded; and the court sustained the objection, and excluded the evidence. Markham was, therefore, unable to show any title to the land. Since the judgment in the ejectment cause—and indeed, since the filing of the original and supplemental bills (which had stated other after-discovered evidence), the original deed from Henry Banks to Wm. B. Banks had been accidentally discovered, and Markham, as he insists, is now able to show a perfect title to the land. This deed bears date the 11th of October 1827.
    The bill also alleges that since the trial, an agreement between John Milner and John Scott, who was in possession of the land under one Tebbs, under whom Boyd claimed, had been discovered, which would have had an important bearing upon the time and fact of Milner’s taking possession of the land.
    Boyd demurred to the original, the amended and the supplemental bills, and also answered. He claimed title under two grants from the commonwealth, one to Abraham Dooly for four hundred and twenty-five acres of land, dated the 1st of March 1781, which covered a part of the land recovered in the ejectment suit; and the other to John Beale, dated the 22d of September 1797, for seventeen thousand five hundred acres, including the whole of the recovered land. This title of Beale after-wards came by regular conveyances to Wm. P. Tebbs; and there was evidence introduced of actual possession of the land by Tebbs by himself and his tenants, the last of whom was John Scott, from about 1805 down to about 1834 or ’35, and possession by Milner, and those claiming under him, from that time; his possession having *been acquired by his agreement with Scott, who agreed to rent from him, upon condition that he would hold him harmless from any claim against him by Tebbs’ heirs; and who left the land in 1836. Though the agreement was not before the jury, there was a receipt in the handwriting of Scott to the same effect as the agreement.
    Beside many deeds and other documents taken from the records of the courts of Botetourt and Rockbridge counties, there were a number of witnesses examined in this case by both the parties, as to the possession of the land by those under whom they respectively claimed, which was not introduced on the trial of the ejectment.
    The cause came on to be finally heard on the 12th of October 1858, when the court was of opinion that the discovery by the plaintiff of the original deeds, and the written contract in the bills and proceedings mentioned, did not entitle him to relief in equity. It was, therefore, decreed that the injunction be dissolved, and that the original and amended bills be dismissed with costs. From this decree Markham obtained an. appeal to the Supreme court of Appeals at Lewisburg; and it was afterwards transferred to this court.
    Barksdale, Smith and. Elder, for the appellant.
    Pendleton, for the appellee.
    
      
      Record in Chancery Suit.—In Adams v. Hubbard. 25 Graft. 136, the court said that the doctrine laid down in the principal case equally applies to awards as to verdicts, and was decisive of the case at bar.
      Records Presumed Correct.—See Neale v. Farinholt, 79 Va. 59. where the principal case is cited among others, as authority on this point. See Wynne V. Newman. 75 Va. 818.
    
   CHRISTIAN, J.

delivered the opinion of the court.

The power of a court to set aside a verdict of a jury, and grant a new trial, upon the ground of newly discovered testimony, is one that is exercised rarely and with great caution. It will not be exercised but under very special circumstances. The party asking its exercise must show that he was ignorant of the existence of the evidence , relied upon; that he was guiltless of negligence; and that the new evidence, if it had been before *the jury, ought to have produced a different verdict. The newly discovered evidence must not only be material in its objects, and not merely cumulative, corroborative and collateral, but it must be such as ought to be decisive, and productive on another trial of an opposite result on the merits of the case.

These principles are well settled by the-decisions of this court. In the case before us it appears that the appellee, Boyd, had instituted his action of ejectment against the appellant, Markham, in the Circuit court of Botetourt; and that at the June term of that court, in the year 1857, a verdict was found for the plaintiff (the appellee here) for the land in the declaration mentioned. A motion was submitted for a new trial, which was overruled, and a judgment entered in accordance with the verdict. No exception was taken to the judgment of the court refusing a new trial,.and consequently neither the evidence nor the facts proved were certified.

In August 1859, Markham filed his bill, praying an injunction to said judgment, and praying that a new trial might be awarded, upon the ground that he had discovered, since the trial, material evidence which could not have been produced by the utmost diligence at the trial, and which was accidentally discovered afterwards. He found it necessary to file an amended bill, and a supplemental bill, which set out more distinctly the character and weight of .the evidence, and the manner in which it was discovered. Neither of these bills profess to set out the evidence which was heard before the jury on the trial of the ejectment. An injunction was awarded; and upon a motion to dissolve the injunction, before the same judge who tried the ejectment case, there was much evidence submitted on both sides; but it is not pretended that all the evidence which was heard before the jury is in the record of the injunction suit. This court, therefore, not having before it the evidence which was before the jury in the ejectment case, cannot *p°ssibly arrive at any satisfactory conclusion as to the relevancy or strength of the newly discovered testimony.

The judge who presided at the trial of the ejectment suit, and who entered the final decree dissolving the injunction and dismissing the bills in this case, is under the circumstances alone competent to decide whether the newly discovered evidence, if it had been before the jury, ought to have produced a different verdict. He has very clearly and decidedly expressed his opinion, in his decree dissolving the injunction. He says, “Assuming that the plaintiff has shown due diligence in preparing for his defence at law, it does not appear that the case before the jury would have been materially changed if the said original deed had been in the possession of the plaintiff at the time of the trial. ’ ’

As to that portion of the land in controversy included in the Dooly patent, under which the defendant Boyd claims (this patent being older than the grant to Henry Banks with which the plaintiff seeks to connect himself), the said deed had no tendency to prove a better title in Markham. It appears that the defendant at the trial of the action of ejectment was permitted to show color of title; that he relied upon his adverse possession for a sufficient length of time, as he contended, to protect him under the statute of limitation; and upon these points parties were fully heard at law. It does not appear that upon another trial the discovery of said deed would enable the plaintiff to make out a stronger case upon another trial. As to the written agreement also alleged to have been discovered since the trial, the court says, “The written contract between Milner and Scott, in the bill mentioned, proves nothing that was not substantially proved at the trial. The receipt which was read in evidence, proves the same contract, in substance, which was proved by the written agreement.” Such is the opinion of the court below declared in its decree.

*The deed and the written agreement referred to in the decree, constitute the newly discovered evidence upon which the appellant based his application to a court of equity for a new trial. Can this court say that the decree of the court below was erroneous -in refusing to award a new trial, when the evidence which was before the jury in the ejectment case is not before this court? We certainly cannot do this in face of the fact, that the judge who heard all the evidence in the ejectment case, asserts in his decree, that the newly discovered testimony (of the relevancy and strength of which we can form no opinion), could not have had the effect to change the verdict of the jury. The decree of the Circuit court must, therefore, be affirmed.

Decree affirmed.  