
    *Darmsdatt v. Wolfe.
    Thursday, October 19, 1809.
    Superior Courts of Chancery — Change of Venue — When Proper.- The superior Court of Chancery have power (upon general principles of equity) to direct the venue to be changed after issue joined in a County or other inferior Court, where it appears that strong prejudices existed against the deiend-anl, which were unknown to him until after such issue was joined, and that a fair and impartial trial conld not be expected in the Court where the suit was depending. ♦
    Same — Same.—In such case, it is not necessary that there should have been a judgment, to authorize the Chancellor to grant the injunction.
    Joseph Darmsdatt instituted an action of trespass assault and battery against Benjamin Wolfe, in the Hustings Court of the City of Richmond. The capias was returned executed to August term, 1801; and a writ of inquiry awarded to the ensuing November term, when the plea of not guilty was put in by the defendant, issue joined, and the cause continued at his costs. On the 6th of March following, Wolfe obtained an injunction from the Superior Court of Chancery to restrain the Court of Hustings from proceeding to the trial of the said issue, and, by consent of parties, such trial was ■directed to be had in the District Court to be holden at Richmond in the next month, but no citizen of Richmond to be of the Jury. This injunction was granted on bill, answer, and sundry affidavits, taken with notice, disclosing circumstances, from which it appeared highty probable, that an impartial trial could not be had without changing the venue. It appeared also, that some of the most important of those circumstances did not occur until after the issue was joined.
    The District Court refused to try the issue, or even to suffer it to be placed on its docket, being of opinion that the Chancellor had no authority to make such order. After this, the Court of Hustings, on the motion of Darmsdatt’s counsel, in spite of strenuous opposition on the part of the defendant, determined to proceed with the trial, and ordered a Jury to be impanelled; whereupon the counsel for the defendant withdrew his appearance, as such, and a verdict was found, and judgment rendered, for the plaintiff, for one hundred dollars damages and costs.
    A second injunction was then awarded by the Court of Chancery, and a motion to dissolve it overruled; “the Court being of opinion, that it hath power to direct the issue in an action for an injury which is not a felony, depending before any Court within the limits of its jurisdiction, *(where this Court believeth the trial will not be impartial,) to be tried before another Court of competent authority within the same jurisdiction.”'
    At a subsequent District Court, holden at Richmond, the 10th of September, 1803, the Judges complying with the Chancellor’s order, the issue was again tried, and a verdict for eighty-eight dollars damages and costs, certified to the Court of Chancery, which thereupon decreed, that the injunction to stay proceedings on the judgment of the Hustings Court be perpetual; that Wolfe pay the damages and costs recovered by the aforesaid certified verdict; and that Darmsdatt pay the costs of both the suits in Chancery.
    On petition of the latter to the Judges of this Court, an appeal was allowed him.
    Copland, for the appellant, relied on a clause, relative to writs of certiorari, in the Counts' Court Law; from which he inferred that the Court of Chancery had no authority, after issue joined, to direct the removal of a cause from a County or Corporation Court, to be tried before any other tribunal. He contended also, that, in no case, could the Chancellor grant an injunction to stay proceedings in a suit depending, but only on judgments; and quoted the 60th, 54th, and 55th sections of the act reducing into one of the several acts concerning the High Court of Chancery.
    
    Hay, contra,
    said that, notwithstanding a Court of Common Law could not award a certiorari after issue joined, a Court of Equity might (upon general principles) direct a change of venue. The existence of such a power is essentially necessary, for the purpose of preventing a failure of justice, and incident to the nature and constitution of a Court of Equity. The sections referred to, relative to injunctions to stay proceedings on judgments, did not abridge the general powers of the Court. They merely subjected the jurisdiction, in the cases therein mentioned, *to certain regulations, but did not take it away in other cases not enumerated.
    The power of the Court of Chancery to award injunctions has been repeatedly exercised both before and since the revolution, and exists independently of the statute. It may be exercised in a variety of cases, even where there is no suit; for example, to stay waste. 
    
    Tuesday, November 14. The Judges (ROANE and ELEMING, JUDGE TUCKER not sitting in the cause) pronounced their opinions.
    
      
       Rev. Code, vol. 1, c. 67, s. 67, p. 92.
    
    
      
       Ib. c. 6á, p. 67, 68.
    
    
      
       See Harris v. Thomas, 1 Hen. & Munf. 17, and Scott v. Wharton, 2 Hen. & Munf. 26. — Note in Original Edition.
    
   JUDGE ROANE.

Darmsdatt brought an action of assault and battery against Wolfe, in the Court of Hustings of the City of Richmond. The writ was returnable to the August term, 1801; issue was joined at the November term; and the appellee with great difficulty avoided being forced into a trial at that Court: at length, however, he got his cause continued.

The unusual rapidity of this movement, while, perhaps, it did not afford the appel-lee time to gain a knowledge of the prejudices existing in the City against him, prior to the cause being put to issue, comes in aid of one of the allegations of his bill, that even the bench of justice itself was not free from prejudice against him. The cause being thus at issue, and no means left the appellee (to my knowledge) to remove the cause to another Court, or to change the venue by application to a Court of Law, he applied to the Court of Chancery for that purpose. He charged in his bill, and proved by testimony, that a torrent of prejudice existed against him in the City; that unusual pains had been taken to foster and encourage it; that strong prejudices existed against him, even on the part of some of the Justices themselves, as manifested at the November *term, after the cause had been put to issue, and in particular, from an unusual “anxiety” being discovered in them to force him into a trial at that term ; and that both from this temper in the Court, and from the prejudices existing among the people of the City, he could not have a fair trial, in the Court in which the cause was depending. As much of this ground of complaint (if not all of it) had only come to the knowledge of the appellee after the cause was put to issue, he would have been entirely without remedy, in respect of a change of venue, but for the interposition of a Court of Equity.

Nothing is more clear than that the powers of a Court of Equity are competent to this purpose, when the powers of the law tribunals are inadequate; on the ground of that jurisdiction being assistant to the jurisdiction of Courts of Law ; and on the further ground that the interposition of a Court of Equity is necessary under such circumstances, to ensure a “fair, impartial and satisfactory trial.” It was particularly necessary that this interposition should be exercised, in default of the powers of the Courts of Law as aforesaid, especially ‘ ‘in small jurisdictions,” where “a cry has been raised, and the passions of the multitude inflamed,” or where one of the parties is popular and the other a stranger, or obnoxious. ” The case thus put by the author of the Commentaries, is the very case at bar, as proved by the testimony, (to which I beg leave to have very particular reference,) with this imperious circumstance to justify the interference of the Court of Equity in the present case, that the material facts, or some of them, rendering a change of the tribunal necessary to an impartial trial, only came to the knowledge of the appellee after the hands of the Courts of Law were tied up from granting relief in this particular, by the stage at which the proceedings in the cause had arrived. But for the interposition of the Court of Equity, the ap-pellee would have been immolated on the altar of prejudice, and the trial would neither have been fair nor satisfactory.

Nothing in any of our statutes, respecting the grant of injunctions or certiorari by the Courts of Chancery, has any *relation to the case now under consideration. The power exercised by the Court of Chancerjr in this case is one of the main pillars of its jurisdiction, and is indispensable to the pure and fair administration of justice.

The Chancellor was therefore justified, not only by his undoubted jurisdiction in this case, but also by the facts proved in the cause, in arresting the proceedings-in the Court of Hustings, and causing a trial to be had before a more impartial tribunal. He went too far, indeed, in extending his interference to the indictment also; (which being a criminal proceeding, is beyond the cognisance of the Courts of Equity ;) but that proceeding is at an end, and is not now before us. When, therefore, he changed the venue by directing the trial to be had in the Richmond District Court, providing also, by consent of parties, that no citizen of Richmond should be upon the Jury, he was strictly within his province, as he (in default of adequate power in the Courts of Law) thereby placed the cause in a channel to ensure a fair and impartial trial. The refusal of the District Court to try the issue, agreeably to the mandate of the Court of Chancery, cannot be justified on any ground more favourable to such Court than that of its entire ignorance of the just powers of the Courts of Equity in this jiar-ticular; and as the particular ground of the proceeding in the Court of Chancery was entirely unknown to the District Court, (for, I presume only the order directing the trial of the issue was before it,) this refusal went the full length of affirming that this power could not rightfully be exercised by the Court of Chancery, under any circumstances whatsoever! not even under the strong and possible circumstances of the whole bench of the Court of Hustings having declared, after issue was joined, and when, consequently, no possibility was left for the appellee to remove the cause except by application to the Court of Chancery, that the appellee should not receive justice at its hands !!

With the highest respect for all the tribunals of our country, it is my duty, sitting in this place, to remark upon this unexampled procedure, as equally unwarranted by the laws *of our country, and tending to sap the very foundations of justice: and, admitting that the order of the Court of Chancery was not justifiable so far as it related to the indictment, this formed no apology for the District Court for not proceeding to try the civil issue.

The Court of Hustings, emboldened by the example of the District Court, improved upon the contumacious conduct of the latter: for, while the latter only refused to execute an order of the Court of Chancery, the former made a positive inroad upon it: it proceeded to try the issue which was both interdicted, as to that tribunal, by the order of the Court of Chancery, and translated to the forum of the District Court; and all this with a full knowledge of the existence of that order 1. The Court of Hustings, therefore, thus not only outraged all precedents on this subject, but also verified, perhaps, the allegation of the appellee, of its unfriendly-disposition towards him: and, as his counsel actually withdrew from his defence,, from a proper respect for the order of the Court of Chancery, which the Court and the adverse counsel were at that moment actually violating, and thus left the appel-lee wholly undefended; on this ground, also, the verdict in the Hustings Court-ought not to bind him.

In this whole business the conduct of the appellee has been free from blame. While he submits to the damages and costs recovered against him in the District Court at the subsequent term, it is right that he should -recover the costs of both suits in Chancery. Those suits were imposed upon him in the first instance by the necessity of resorting to the Court of Chancery to ensure to him a fair trial, and afterwards, by the errors or contumacy of the District-Court and Court of Hustings. Admitting, therefore, that the appellant was himself personally free from blame also, his is but the common case of being compellable to pay costs in consequence of the errors or mistakes of the inferior tribunals. The appellant has less reason to complain, in this respect, than the appellee had in the case of Cocke v. Pollock & Co., who was condemned to pay the costs of an appeal to this "x'Court imposed upon him with the sole view of settling a general question of jurisdiction.

On these grounds I am of opinion to affirm the Decree now before us.

JUDGE FLEMING.

The administration of justice (says Judge Blackstone, in his Commentaries, volume 3, page 383), should not only be chaste, but should not even be suspected: and though in some respects, juries coming from the neighbourhood are advantageous, they are often liable to great objections: and after noticing some instances, he adds “or where a cry has been raised, and the passions of the multitude have been inflamed, or where one of the parties is popular, and the other a stranger, or obnoxious, &c. the Courts of Law will therefore, in transitory actions, very often change the venue, or county where the case is to be tried.”

The very case now before us. There is abundant proof, from the affidavits of Moody, Harris, and Quarrier, that the cry was loud, and that strong prejudices prevailed against the appellee; who, it seems, was not apprized of those circumstances, until after there was an issue in the cause, which was joined in a short time after its commencement; and it was then too late to apply to a superior Court of Law to remove the cause by a certiorari: his only mode of relief was by an application to a Court of Equity; which in my conception had ample jurisdiction to afford him a remedy. We are told by Judge Blackstone, that, in England, though the Courts of Law have no direct power to change the venue in local actions they sometimes do it indirectly and by mutual consent; yet to effect it directly and absolutely, the parties are driven to a Court of Equity; where, upon making out a proper case, it is done, upon the ground of being nece'ssary to a fair, impartial, and satisfactory trial. And it is laid down, as a general principle, in Eonblanque, page 9, that equity stands for the whole of natural justice; is more excellent than any human institution; and that Courts of Equity are assistant to the jurisdiction of Courts of Law, by removing legal impediments “to the fair decision of a question depending in a Court of Law. If, in England, then, a Court of Equity has the power of exchanging the venue in cases where the Courts of Law have no such direct power, upon the same principle may Courts of Equity exercise the same powers here, unless restrained by an express statute : and it appears to me that there could not have been a more proper occasion for exercising the power, than the one now unaer consideration. I therefore, without minutely stating the circumstances of the case, which have been amply investigated by' JUDGE ROANE, who preceded me, concur in opinion that both decrees be affirmed. 
      
       1 Font). 10.
     
      
       3 Bl. 383.
     
      
      .) Ibid.
     
      
       1 Font). 5.
     
      
       1 Hen. & Muni. 149.
     