
    *Steptoe v. Flood’s Adm’r.
    January Term, 1879,
    Richmond.
    1. Issue oui of Chancery^ — Evidence.—On the trial of an issue out of chancery the plaintiff in the issue relies upon a receipt to which there is an attesting witness, but both the witness and the principal are dead. The plaintiff having proved the handwriting of the witness, the defendant may introduce the testimony of witnesses to prove that the name of the principal to the receipt is not in his handwriting.
    2. Appeal-Conflict of Testimony — Vex*diet of Jury. — There being great conflict of opinion among the witnesses as to the genuineness of the ‘ handwriting of the principal to the receipt, the verdict of the jury against it will not be disturbed.
    3. Jurors Impeaching' Verdict. — The court will not set aside the verdict of the jury on the certificate or affidavit of two of the jurors, that they thought the receipt proved and ought to be considered; but the other members of the jury insisted that the receipt had nothing to do with the case, and they were persuaded against their judgment to consent to the verdict, and that it is now against their judgment.
    4. Same — General Rule. — It is the general rule in ordinary trials that a verdict will not be disturbed upon the affidavits of jurors; and this is so in the case of an issue out of chancery, especially.
    The controversy involved in this case has been pending, in a variety of forms, for more than twenty years. It was founded on a check dated December 23, 1854, drawn by W. J. Read on the cashier of the Farmers Bank of Virginia at Lynchburg, payable to Quarles & Steptoe, or order, for five hundred dollars. The said Read claimed to have loaned the s,aid check to the said Quarles & Steptoe, who were partners; and that they were jointly indebted to him in the amount thereof. They having made default in the payment of said claim. *and he having transferred the same to Henry D. Flood, on the 12th day of January, 1857, an action of assumpsit was brought in the circuit court of Bedford county in the name of said Read, plaintiff, for the benefit of said Flood, against the said Quarles & Steptoe, defendants, to recover the amount of the said check. On the 29th day of April, 1857, the defendants plead non-assumpserant to the action, to which the plaintiff replied generally, and the trial of the issue thus joined was deferred until the next term. On the 28th day of April, 1860, the said issue was tried by a jury, which found a verdict for the plaintiff, and assessed his damages at five hundred dollars, with interest from the 23d of December, 1854, and judgment was thereupon rendered in favor of the plaintiff against the defendants for the said sum of five hundred dollars with legal interest thereon from the said 23d day of December, 1854, till payment, and his costs by him about his suit in this behalf expended.
    Upon the trial of the cause the defendant Steptoe tendered three several bills of exceptions to opinions of the court, which bills were made a part of the record in the cause, and were to the effect following, to-wit:
    In the first bill it is in substance stated, that when the cause was called for trial the defendant Steptoe moved the court for leave to withdraw the joint plea of .both defendants (the defendant Quarles making no objection thereto]) and to file his separate plea “that the said defendants did not assume upon themselves in manner and form as said plaintiff hath in his declaration alleged, and of this he puts himself upon the country”; the counsel for the defendant Steptoe stating that the defence relied on was, that the demand in controversy was the individual liability of said Quarles, and not of the firm of Quarles & Steptoe, and that he wished to introduce said Quarles as a *witness to prove this defence, and for that reason he wished to plead separately for Steptoe; and the court refused to permit the joint plea to be withdrawn and the above plea to be filed; and then said defendant asked leave to file said plea in addition to that heretofore filed; which the court refused. And to the said action of the court the defendant Steptoe excepted.
    In the second bill it is in substance stated that “upon the trial of the cause the plaintiff offered to read in evidence the deposition of N. H. Campbell in the following words and figures, to-wit:” Then follows the said deposition as taken by Joseph C. Lawrence, a commissioner for the state of Virginia, at his office, in the city of New York, in the state of New York, on the 23d of April, 1858, in which deposition are the following questions, propounded by the plaintiff to the witness, and the following answers thereto:
    “Question. Examine the accompanying account and protested check and state what you know of them?
    “Answer. I have examined the account and protested check referred to in the question, and for their identification as the papers before me I have marked the protest 2, and the account S. I recognized the protested check as a paper which was placed in my hands as an attorney by William J. Read, the plaintiff, as evidence of the amount of a debt claimed by him of the defendants. The account I also recognize as a paper exhibiting the result and items of a settlement had in my presence, as hereinafter stated, between the plaintiff and the defendant, Quarles, of individual transactions theretofore had between them.
    “Question. State whether you presented the check as evidence of Read’s claim against Quarles & Steptoe, what took place at the time, and what was said by Quarles, what by Steptoe?
    *“Answer. I did exhibit the check, and protest to each of the defendants stating the plaintiff’s claim; that it had been loaned to them, and that he, having paid the same, was entitled to recover the amount so paid back from them. Quarles, whom I spoke to several times on the subject, uniformly admitted the statement on which the claim was based to be correct and just, as often declared that it should be paid. I also presented the claim to the defendant Steptoe along with an account for a small sum purporting to be due from the defendants to the plaintiff. On looking over the papers, Steptoe said he would pay the account, but the amount of the check was to be taken care of by Quarles; and that Quarles said there were unsettled individual accounts between Read and himself, upon an adjustment of which this sum would be included and settled; think the plaintiff was standing near enough to us for me to call to him and repeat the substance of what Steptoe had said. The plaintiff, in reply, stated to both Steptoe and myself that upon a settlement of individual matters between Quarles and himself that Quarles would fall considerably in his debt. I then remarked to Steptoe that Quarles admitted the check to have been loaned to Quarles & Steptoe by the plaintiff; and that upon that admission I thought it could be recovered at law, and if so it would be better to settle it without suit. He dissented from me, but finally said he would again see Quarles in regard to it. He did so, and in a short time afterwards told me that he should not pay the claim. About the time that Steptoe told me his final determination not to pay it, Quarles came out and told the plaintiff he had better not press the matter further then, as it should all be made all right. Everything in the foregoing answer relating to the interview *with Steptoe occurred in the street in Liberty, near the hotel.”
    There are other questions and answers in the deposition, but they need not be repeated here.
    To the reading of the said deposition the defendant Steptoe objected, because it was taken without any commission, both because the paper purporting to be a commission was not signed by the clerk; and also because the commissioner who took it did not certify it was taken in pursuance of any commission, &c. The clerk and deputy clerk were also examined in regard to the commission and deposition; and thereupon the court permitted the deposition to be read as evidence upon the trial of the suit; to which action of the court the defendant Steptoe excepted.
    In the third bill it is, in substance, stated that after the jury were sworn the defendant Steptoe offered to introduce the said Quarles as a witness to prove that the demand sued for was the individual debt of said Quarles, and that there was no liability of said Steptoe therefor, to which the plaintiff objected; and thereupon said Quarles offered to withdraw the plea, so far as related to himself, theretofore pleaded, but the court refused to permit him to do so; and then leave was asked to permit said Quarles to acknowledge the plaintiff’s action to enable him to testify for said Steptoe, which the court refused to permit said Quarles to do; and the defendant Steptoe again offered said Quarles as a witness, the counsel for the defendants stating that Quarles was making no defence, and that the proof they offered applied wholly to said Steptoe, but the court again refused to permit said Quarles to testify. To all of which acts of the court in this bill mentioned the defendant Steptoe excepted.
    On the said judgment an execution was issued and levied on the property of said Steptoe, who gave a ♦forthcoming bond, on which there was a judgment and award of execution, which execution was issued, but had not been returned on the 14th of December, 1860, when a copy was made of the said record; which was no doubt intended to be the foundation of an application for a writ of supersedeas to said judgment.
    About the date last mentioned, the said Steptoe accordingly applied to a judge of this court for a writ of supersedeas as aforesaid, which was accordingly awarded, to-wit: in December, 1860, and the case was depending in this court from that time until the 27th of October, 1868, when the said judgment was unanimously affirmed by the court, as may be seen by reference to the case of Steptoe v. Read, for, &c., 19 Graft, pp. 1-13.
    The. plaintiff Read having died pending the said case in this court, a writ of scire facias was sued out after the said affirmance to revive the said judgment on the forthcoming bond, which was accordingly revived on the 7th of May, 1869; and more than a year having elapsed after the said revival, the said judgment was again revived by another scire facias, and a judgment rendered thereon on the 14th of October, 1870. It seems that an execution on the last-mentioned judgment having been returned “no effects,” and both Read and his assignee, Flood, having died (the said Read long before), Thomas J. Kirkpatrick, as administrator of Flood, filed a bill in the said court to subject the real estate of said Steptoe to the payment of said judgment.
    Pending said suit, and after a decree had been made therein for a sale of said real estate, to-wit: the 7th day of July, 1874. the said Steptoe filed his bill in the said court against the said Flood’s administrator for the purpose of enjoining said sale and obtaining a new trial of the said cause upon the ground alleged in said bill, “that the check for $500, upon which the said suit was brought and judgment rendered, was given by said Read to said *Quarles in part payment of a draft drawn by said Quarles on Dickinson, Hill & Co., of Richmond, for $1,300, and that said Read executed to said Quarles a receipt showing that fact, and by which it appeared that the said firm of Quarles & Steptoe were in no manner responsible for said transaction; but the said Quarles had mislaid said receipt, and on the trial of the case the same could not be produced to be used in evidence, and the said Quarles being an incompetent witness he could not testify, so that the defendants were deprived of the benefit of the receipt aforesaid, which would have necessa-* rily defeated the action”; that the said Step-toe, “who was and is the only responsible member of the concern, knew nothing at the time of the existence of such a paper. Since the rendition of the judgment aforesaid, and its affirmance by the court of appeals, the said Quarles has found the said receipt and delivered it to the said Steptoe, who filed the same with the affidavit of said Quarles attached thereto as part of the said bill. It was further charged in said bill that said Quarles was insolvent; that the whole burden of said judgment falls upon said Step-toe; that at the time of the trial aforesaid he did not know of the evidence above referred to except from the declaration of Quarles, and had no means of producing the same; that he used due diligence to discover and produce all testimony favorable to him on the trial of the case, and that he has only discovered this testimony since the trial.
    Exhibit No. 1, filed with said bill, being the affidavit of said Quarles, and receipt thereto appended as aforesaid, is in these words:
    Affidavit.
    “I, Jesse L. Quarles, do certify that the receipt appended hereto, dated 33d day of December, 1854, was executed by W. L. Read to me at the time it bears date. *At the time of the execution of the receipt I gave to said Read a draft on Dickinson, Hill & Co. for $1,300, which he collected in part payment of said draft. He gave me the check mentioned in the receipt for $500, upon the Farmers Bank at Lynch-burg, and it was made payable to Quarles & Steptoe at my request, as I intended to use it for them in a transaction which I was individually bound to pay. I further certify that when the suit was brought on said check for $500, by the said Read against Quarles & Steptoe, and during its pendency and trial, I searched for said receipt to use as evidence to show that Quarles & Steptoe were not liable for the payment of the same, and that it was given in part payment of the draft on Dickinson, Hill & Co.; but after diligent search I was unable to find it, the same being mislaid. After the judgment was rendered in the court below, and while the case was pending in the supreme court of appeals. in looking over some papers I found this receipt and placed it in the hands of John R. Steptoe.”
    Receipt.
    “1854, December 33d.
    “I have this day received of Jesse L. Quarles Ms draft upon Dickinson, Hill & Co., of Richmond, for $1,300; for which I have given him a check upon the Farmers Bank at Lynchburg for $500. payable to Quarles & Steptoe, and the balance upon said draft of $800 I am to pay to the said Quarles as he may demand it.
    “W. J. Read,
    “Teste:
    “Sampson Karnes.”
    On the same day of the filing of said bill, to-wit: the 7th' of July, 1874, an injunction was awarded by the judge of said court according to the prayer of said bill, on the terms prescribed in the order awarding the same. *But it seems that the said Steptoe not having complied with said terms for several years, a sale of the real estate of said Steptoe was made under the decree obtained to subject the same to sale for the satisfaction of the judgment liens upon it, including the said judgment in the name of said Read’s administrator for the benefit of said Flood’s administrator. And it further seems that said Steptoe never did comply with said injunction order, and not until after the sale of his real estate aforesaid, to-wit: in December, 1875, did he sue out process on his said bill, which being returned executed on said Thomas J. Kirkpatrick, administrator of said Henry D. Flood, deceased, that defendant, in February, 1876, filed his answer to the said bill, to which the plaintiff replied generally.
    In that answer the said defendant stated in substance, among other things, that he “denies that said check was given to said Quarles in part payment for a draft on Dickinson, Hill & Co., or in payment for any other debt or thing. He denies that said transaction was on account of Quarles alone, and insists on said judgment as an adjudication of all questions relating to said transaction. Respondent, further answering, says that he is well acquainted with the handwriting of the said William J. Read, deceased, having had abundant opportunities for knowing it well, and upon this knowledge, as upon the judgment of several other excellent judges of his handwriting, he now says he does not admit that said Read ever executed the pretended receipt filed as exhibit No. 1 with the said bill. On the contrary, respondent believes and here declares that the same is not genuine. In support of this allegation and denial respondent refers to the record in the original suit, and particularly to the bills of exceptions taken on the trial by the plaintiff here and said Quarles, in which they declared that their de-fence *was ‘that the demand in controversy was the individual liability of Jesse L- Quarles, and not of the firm of Quarles & Steptoe;’ and. again, it was then proved ‘that said Quarles had uniformly admitted the statement on which said claim was based to be correct and just;’ this, too, very shortly after the date of the transaction, when the memory thereof must have been fresh with all concerned. So that then no pretence was made of the existence of any such paper, or of any such contract in the matter, as is now set up, and respondent therefore says that said plaintiff is estopped from now making said new defence.
    “Respondent, further answering, says he does not admit that said pretended receipt came to the plaintiff’s possession since the affirmance by the court of appeals of said judgment; but says that said plaintiff, since this last suit was instituted, declared to respondent that it came to his possession before the death of William J. Read, which occurred not later than in 1862.
    “Respondent, further answering, says that said plaintiff ought not to be allowed to make his said defence to said judgment now, because, after he discovered said receipt- — -if the same be held to be genuine- — and before he propounded it for the purposes of this suit, the said Read, the said Flood, and N. H. Campbell, who. as attorney for Read, was well acquainted with the transaction almost from its origin, and who was probably the principal witness upon whose testimony the verdict was given in the original suit, have all departed this life, so that now this respondent would be unable to defend the estate of his intestate as he might otherwise be able to do. Nor ought said plaintiff to be allowed to set up his said defence to said judgment now, because this respondent says that he, said plaintiff, after he was in possession *-of said pretended receipt, abandoned all idea of setting -it up against said judgment, and more than once in the lifetime of H. D. Flood promised him to pay said judgment. Indeed, respondent says that since he qualified as administrator of said Flood the plaintiff has repeated said promise to him.
    
      “Respondent, further answering, says that after the plaintiff recovered possession of said pretended receipt he allowed more than twelve years to elapse before he propounded it as a defence to said judgment, and that he is now barred of all action thereon by the statute of limitations, and respondent insists on this defence as if the same were here fully pleaded.”
    Before setting out the grounds of the said answer the respondent demurred to the bill for the following causes:
    “1st. That said complainant has not by his bill made such a case as entitles him to any relief against him.
    “Sd. That said defendant has failed to make Jesse L. Quarles a party to his said bill.
    “3d. That he has in said bill joined two separate causes of action against distinct and different parties who are in no wise connected.
    “4th. That he wholly fails in said bill to give any sufficient reason why his defence therein made was not made to the suit at law therein referred to.
    “5th. That he wholly fails in said bill to assign any reason or excuse for his laches in neglecting, for so long a time, to produce and set up his said defence after the evidence thereof was in his possession.”
    ' Sundry depositions were taken and filed on each side as evidence in the cause at different times between the 7th day of March and the 4th day of September, 1876, mainly in regard to the handwriting of the signature _ of William J. Read to the said receipt, *filed as exhibit No. 1, the following in behalf of the plaintiff, to-wit: William S. Myler, William Arrington, B. L. Owen, Thomas M. Wilkinson, and Sampson Karnes; and the following in behalf of the defendant, to-wit: John A. Clement, T. J. Kirkpatrick, Odin G. Clay, William E. Holley, and E. T. Read. The evidence in regard to the handwriting of the said signature, “W. J. Read,” was very conflicting. The witness Sampson Karnes, in his deposition, being asked by said Steptoe whether he was a subscribing witness to said exhibit No. 1, which was then shown to him, purporting to be W. J. Read’s, dated 1854, December 33d, and whether the same was acknowledged in his presence by said Read, answered: “My name as a witness to the paper shown to me is in my handwriting; I do not remember much about it. Read and Quarles had a good many transactions with each other, and I witnessed several papers for them.” Being further asked by the same where he was living at the time the paper bears date, to-wit: in December, 1854, he answered: “I was living at the Bedford House, a hotel in the town of Liberty, kept at that time by Quarles & Steptoe.” He was then cross-examined, and among other things, being asked when was the first time he saw the said paper after it was witnessed by him, he answered: “This day; if I ever saw it before since I signed it, I do not recollect it.” Being further asked to examine the paper and say who wrote the body of it, he answered: “I think ’tis the hand of Jesse Quarles.” And being further asked in whose handwriting the word “teste” is written just above his signature to said paper, he answered: “It looks like the handwriting of Jesse Quarles. It is not mine.” Being further asked what was his business while living with Quarles & Steptoe, he answered: “I was keeping bar and tending about *the house.” And being further asked, “Do you now remember that you lived with them in December, 1854?” he answered: “I recollect living there about that time; I think it was about that time I witnessed that paper.” This witness died after the 7th of March, 1876, when his deposition was taken, and before the 4th of September, 1876, when the witness William S. Myler proves that he was dead.
    On the 13th of September, 1876, on the motion of the plaintiff, by counsel, leave was given him to dismiss the said bill as to the defendant John A. Clement (against whom, as one of the co-defendants with the said Kirkpatrick, administrator of said Flood, it had been originally filed) without prejudice to his right to proceed in any separate action or bill against the said Clement for the same cause alleged against him in the present bill, and the same was dismissed accordingly.
    And thereupon the cause came on to be heard as between the plaintiff and the defendant Thomas J. Kirkpatrick, administrator of Henry D. Flood, deceased, upon the bill of the plaintiff, demurrer and answer of the said defendant, replication to said answer, exhibits and examination of witnesses, and was argued by counsel.
    Upon consideration whereof (the defendant waiving his objection as to Jesse L. Quarles not being a party to said bill, assigned as the second cause of demurrer) the court overruled the said demurrer and decreed that an issue be made up and tried before a jury at the bar of the said court on its common-law side, to ascertain whether the debt for which the judgment in the bill mentioned of “Read, for, &c., against Quarles & Steptoe,” was recovered, was the individual debt of Jesse L. Quarles, or was really the debt of Quarles & Steptoe, and that the verdict of the jury thereupon be certified to the court; and upon the trial of said issue the said John R. Steptoe *shall be plaintiff, and the defendant Kirkpatrick, administrator as aforesaid, shall be defendant.
    On the 5th, 6th, 7th and 8th of September, 1877, the said issue was tried by a special jury, and on the last-named day a verdict was found by the jury in these words: “We, the jury, find that the debt for which the judgment in the bill mentioned of Read, for, &c., v. Quarles & Steptoe was recovered, was really the debt of Quarles & Steptoe, and not the individual debt of Jesse L. Quarles.” Whereupon the court ordered that the said verdict be certified to the chancery side of the said court.
    Two bills of exceptions were taken by the plaintiff to opinions given by the court on the trial of the said issue.
    
      In the first of the said two bills it is stated that on the trial of the issue, the plaintiff, to sustain the same on his part, introduced a paper in the following words and figures, to-wit: (Here is inserted the receipt marked exhibit No. 1, filed with the bill and already copied in this statement), and proved that the subscribing witness, Sampson Karnes, was dead; and further proved that the signature of said Karnes was his genuine signature; and then read the said paper as evidence to the jury. Whereupon the counsel for the defence introduced witnesses to prove that they were acquainted with the handwriting of W. J. Read, and that in their opinion the signature W. J. Read to said paper was not in the handwriting of said Read; to the introduction of which testimony the plaintiff’s counsel objected, because, if the execution of the paper was proved by the proof of the handwriting of the subscribing witness, it was immaterial whether the signature was written by the said W. J. Read or not, and testimony as to the genuineness of the signature was calculated to mislead the jury; but the court overruled said objection and admitted the testimony; to which opinion of the court the plaintiff excepted.
    *In the second of the said two bills it is stated that after the verdict of the jury upon the issue in this cause had been rendered and certified to the chancellor, the plaintiff moved the court to set aside said verdict and grant a new trial on the grounds:
    1st. That the verdict was contrary to the evidence.
    3d. That the court had erred in allowing the defendant on the trial to give evidence before the jury tending' to show that the signature of W. J. Read to the exhibit No. 1 was not his genuine handwriting, after the plaintiff had proved that the attestation of Sampson Karnes, the subscribing witness to said paper, who is dead, was in the handwriting of said Karnes.
    3d. Because -of the statement contained in the paper' signed by two of the jurors who tried said issue, which is in the following words, to-wit:
    “Th.e undersigned, members of the jury that tried the issue out of chancery in the case of Steptoe v. Flood’s ex’or, do certify that in-determining the issue and arriving at the conclusion that was reached the jury did not pass upon the genuineness or validity of the receipt purporting to have been executed by W. J. Read and witnessed by Sampson Karnes. We were of opinion that the said paper was proved, and ought tó be considered, but the residue of the jury insisted that the said paper had nothing to do with the case; that from the face of the check it appeared that the debt was a partnership debt, and ought to be so decided. We were of a different opinion, but were persuaded against our judgments to agree to the verdict, and regret now that we did consent to the verdict, and state that it is now against our judgments.
    “J. M. Ragland,
    “J. A. Dooley.”
    *Which motion the court overruled; to which opinion of the court, refusing to set aside said verdict, the plaintiff excepted. And to give the plaintiff the benefit of his exceptions, the court certified that the following facts were proved to the jury on the trial of the issue by the plaintiff to sustain the issue on his part:
    “It was proved by three witnesses that they were acquainted with the handwriting of Sampson Karnes, the subscribing witness to exhibit No. 1, and they believe his signature to said paper to be genuine, and the plaintiff then read the said paper as evidence to the jury (which paper has been hereinbe-fore copied), and then rested his case; and the defendant, to sustain the issue on his part, read to the jury the check on which the judgment was obtained in the case of Read, for, &c., v. Quarles & Steptoe, and proved by eight witnesses that they were acquainted with the handwriting of W. J. Read, and ,in their opinion the signature, W. J. Read, at the bottom of said paper, exhibit No. 1, is not his genuine 'signature, and one of the witnesses stated that he was acquainted with the handwriting of the complainant, J. R. Steptoe, and while it is difficult to judge- of the handwriting of a person from one word alone, the word “teste” in said paper was more like the handwriting of said Steptoe than the handwriting of any other person he knew of; and further to sustain the issue on his part, defendant read to the jury from the deposition of N. H. Campbell, who is dead, the answer of said Campbell to the following question: “Examine the accompanying account and protested check; state what you know of them? (See the answer to this question before copied in this statement.) And then the plaintiff, to further sustain the issue on his part, proved by ten witnesses, by way of rebutting testimony, that they were acquainted with the handwriting of the said W. J. Read, and that they believed the signature to said paper to be his genuine *signature, and also read to the jury the deposition of the subscribing witness, Sampson Karnes, to said exhibit No. 1, taken in his lifetime (the same here-inbefore copied).
    On the 13th day of September, 1877, the cause came on to be finally heard on the papers formerly read and the verdict of the jury upon the issue directed to be tried on the common-law side of the court, which verdict was certified to the court, and upon the motion of the plaintiff, Steptoe, to set aside said verdict, and was argued by counsel. On consideration whereof the court overruled said motion for a new trial, and signed and sealed the bill of exceptions tendered by said plaintiff to the action of the court in overruling said motion, and decreed that the plaintiff’s bill be dismissed with costs. '
    From the said decree of the 13th day of September, 1877, the said Steptoe applied to this court for an appeal; which was accordingly awarded.
    James F. Johnson, for the appellant.
    Kirkpatrick & Blackford, for the appellee.
    
      
      Jurors Impeaching: Verdict. — The general rule is that the testimony of jurors ought not to be received to impeach their own verdict. Danville Bank v. Waddill's adm’r, 31 Gratt. 469, citing principal case; Price’s ex’or v. Warren, 1 H. & M. 385; Shobe v. Bell, 1 Rand. 39; Koiner v. Rankin’s heirs, 11 Gratt. 420; Bull v. Commonwealth, 14 Gratt. 673; Thompson v. Commonwealth, 8 Gratt. 637; Elam v. Commercial Bank, 86 Va. 92; Harnsbarger’s adm’r v. Kenney, 6 Gratt. 287; Reed v. Commonwealth, 22 Gratt. 924; Moses v. Cromwell, 78 Va. 671. Compare Moffet v. Bowman, 6 Gratt. 21; Cochran v. Sheet, 1 Wash. 79; Miller v. Wills, 95 Va. 351; Graham v. Bank, 45 W. Va. 703; State v. Cobbs, 40 W. Va. 724; Probst v. Bracunlich, 24 W. Va. 357; Reynolds v. Thompkins, 23 W. Va. 229.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case he proceeded:

There are but two assignments of error in the petition for the appeal in this case. They are:

First. That on the trial of the issue, after the plaintiff had proved the signature of the attesting witness to the receipt marked No. 1, filed with the bill and inserted in the bill of exceptions taken on the said trial, the circuit court erred in allowing the defendant to introduce as evidence to impeach said receipt testimony tending to show that the signature of the person *whose name was subscribed to said receipt was not in his handwriting; and,

Second. That the circuit court erred in overruling the motion of the plaintiff to set aside the verdict and grant a new trial of said issue, on the grounds stated in bill of exceptions No. 2.

As to the first assignment of error, certainly a subscribing witness to a written instrument, if he attested it by request,_ express or implied, of the author of the instrument, which will be presumed to have been the case in the absence of evidence to the contrary, must be produced to testify as to the execution of the said instrument by the party who seeks to set it up or show its execution, provided the said witness is alive, and in the jurisdiction of the court, and competent to testify; but if not, the genuineness of his attestation to the said instrument must be proved by the said party, if it can be, by proof that the signature to the attestation is in the handwriting of the subscribing witness.

It may be out of the power of the said party to produce the attesting witness on the trial, or to prove his handwriting or the genuineness of his signature to the attestation; or the subscribing witness, if produced on the trial, may not recollect the execution of the instrument, or deny the genuineness of his apparent attestation thereof; or the proof of the execution of the instrument in that way may not be sufficient in the estimation of the party by whom it is introduced, or of the court in which the trial is pending. In any such case it is competent for the. said party to prove the genuineness of the signature of the author of the instrument to the same by other evidence than that of the attesting witness, or proof of his handwriting if it cannot be produced on the trial. Such is the law of evidence in regard to the party on *whom devolves the burden of proving the due execution of an instrument to which there is an attesting witness, and which may be offered in evidence on the trial of a controversy.

But whatever may be the evidence introduced by the party upon whom the burden of proving the due execution of an instrument may devolve in the trial of a controversy concerning the same, certainly it is competent to the adverse party to prove, if he can, that the name signed to the said instrument as that of its author is not in the handwriting of the party thus claimed to be such author.

That such is the well-settled law, there can be no doubt; and to show that it is, it can only be necessary to refer to standard elementary works on the subject and the cases therein cited, many of which are referred to in the printed argument of the learned counsel for the appellee. See 1 Greenleaf on Evidence, §§ 569-578; 1 Wharton on the Eaw of Evidence, §§ 723-730; and the notes thereto.

The attesting witness to the instrument in question in this case being dead at the time of the trial of the issue, the plaintiff, on whom devolved the burden of proving said instrument on the said trial, introduced evidence to prove the genuineness of the signature of the attesting witness; and both parties introduced evidence upon the question, whether the signature, “W. J. Read,” to the said instrument as its author, was the handwriting of W. J. Read, assignor of Henry D. Flood, whose administrator, Thomas J. Kirkpatrick, is the appellee in this case.

, The court is therefore of opinion that the circuit court did not err in allowing the defendant to introduce, as evidence to impeach the said receipt, testimony tending to show that the signature of the person whose name *was subscribed to said receipt as its author was not in the handwriting of the alleged author.

As to the second assignment of error, the court is of opinion that the circuit court did not err in overruling the motion of the plaintiff to set aside the verdict and grant a new trial of the said issue, whether on the grounds or any of them stated in bill of exceptions No. 2 as aforesaid, or any other grounds whatever.

There are three grounds so stated, which, and our opinion in regard to them, are as follows:

“1st. That the verdict was contrary to the evidence.” There is certainly a great conflict in the evidence as to fhe question whether the signature, “W. J. Read,” to receipt No. 1, filed with the bill, is in the handwriting of W. J. Read, the assignor of Henry D. Flood, the intestate of Thomas J. Kirkpatrick, the appellee in this cause. The mere fact of the existence of such a conflict seems of itself to be a sufficient and unanswerable ground for affirming the action of the court below in overruling the motion of the plaintiff to set aside the verdict and grant a new trial of the said issue. Tt is the peculiar province of a jury to decide a question of fact arising in a cause, and upon the weight of the testimony on which it depends. They see and hear the witnesses testify in the cause, and when the judge who presides at the trial, and also sees and hears the witnesses testify, refuses to set aside the verdict, an appellate court, which has not that advantage, will not reverse the judgment upon the ground that the verdict is contrary to the weight of the evidence. This is an established rule of law well settled by many authorities, and among others the following decisions of this court cited by the counsel for the appellee, viz: Goode v. Love’s adm’rs, 4 Leigh, 635; Brugh v. Shanks, 5 Id. 598; Patteson v. Ford, 3 Gratt. 19-23; Bell v. Alexander, 21 Id. 1; Blosser v. Harshbarger, Id. 214; Hilb v. Peyton, 22 Id. 550; Blair & Hoge v. Wilson, 28 Id. 165, *175. Other strong reasons might be given in support of the same view, but the one already given is believed to be sufficient. We will therefore, proceed to consider the two remaining grounds for setting aside the said verdict and granting a new trial stated in said bill of exceptions No. 2.
“2d. That the court had erred in allowing the defendant, on the trial, to give evidence before the jury tending to show that the signature of W. J. Read to the exhibit No. 1 was not his genuine handwriting, after the plaintiff had proved that the attestation of Sampson Karnes, the subscribing witness to said paper, who is dead, was in the, handwriting of said Karnes.”
The same question is here presented which is also presented by the first assignment of error, and we have, therefore, already expressed our opinion upon it; according to which it was clearly and insufficient ground for setting aside the verdict and granting a new trial of the issue.
' “3d. Because of the statement contained in the paper signed by two of the jurors who tried said issue, which paper is in the following words and figures, to-wit:
“The undersigned, members of the jury that tried the issue out of chancery in the case of Steptoe v. Flood’s ex’or. do certify that in determining the issue and arriving at the conclusion that was reached, the jury did not pass upon the genuineness or validity of the receipt purporting to have been executed by W. J. Read and witnessed by Sampson Karpes. We were of opinion that the said paper was proved, and ought to be considered, but the residue of the. jury insisted that the said paper had nothing to do with the case; that from the face of the check it appeared that the debt was a partnership debt, and ought to be so decided. We were of a different opinion, but were persuaded against our judgments to *agree to the verdict, and regret now that we did consent to the verdict,. and state that it is now against our judgments.
“J. ,M. Ragland,
“J. A. Dooley.”

. It is certainly a general rule that affidavits of jurors to impeach their verdict should be rejected, first, because they would tend to defeat their own solemn acts under oath; second, because their admission would open a door to tamper with jurymen after they have given their verdict; and third, because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. 3 Graham & Waterman on New Trials, pp. 1428, 1450. There are, no doubt, exceptions to this general rule, but without attempting to lay down the exceptions, it is sufficient to refer to the work just cited and the notes thereto, and to say that in our opinion this case comes within the general rule, and not any of the exceptions aforesaid. Indeed, it does not appear that the certificate of the two jurors aforesaid was even sworn to by them; but whether sworn to or not, our opinion as to its effect upon the verdict is as aforesaid. See Bull’s case, 14 Gratt. 613, 626, and Read’s case, 22 Id. 924, 947.

And such would be the case if this were an ordinary jury trial. But, instead of being so. it is a trial of an issue out of chancery, the object of which is to inform the conscience of the court of chancery which directs the issue. That court may disregard the issue .after directing it, or decide differently from the jury which tried the issue. And especially if the issue be tried before the same court, which sees and hears the witnesses testify on its trial, and concurs as to the correctness of the verdict found by the jury upon the issue, the said court will not set aside the verdict and order a new trial of the *issue because one or more of the jury may certify, or even swear, to the effect of the certificate of the two jurors in this case. On this subject see the case of Steptoe v. Pollard, 30 Gratt. 689. and the cases therein referred to.

The issue in this case was “to ascertain whether the debt for which the judgment in the bill mentioned, of ‘Read, for, &c., against Quarles & Steptoe,’ was recovered was the individual debt of Jesse L. Quarles or was really the debt of Quarles & Steptoe”; and not to ascertain whether the signature, W. J. Read, to exhibit No. 1, filed with the bill, was in the handwriting of W. J. Read, the assignor of H. D. Flood, the intestate of T. J. Kirkpatrick, the appellee in this case. It is alleged by Steptoe, the appellant, that that paper was mislaid or lost for many years, and therefore was not produced nor relied on in this litigation, nor even mentioned until the filing of the bill in this case, on the 7tli of July, 1874, ■ which was filed with that bill as “exhibit No. 1.” It is very clear from the evidence in the record that that paper, if really ever lost, was found many years before it was produced and relied on as aforesaid, after the death of W. J. Read, H. D.. Flood and N. H. Campbell, three of the chief actors in the transaction, who might, perhaps, have fully explained it. The action was originally brought by Read against Quarles &' Steptoe to recover the amount of his check to them drawn in Í854, not long after that check was drawn, when all the parties to the transaction were alive, and doubtless remembered everything about it. Quarles’ liability to Read for the amount of that check was never denied by Quarles; but Steptoe contended that though the money was loaned by Read to-Quarles by means of a check to Quarles & Steptoe, who were partners, and though the money was applied by Quarles to the payment of a partnership debt, yet that as between him and Quarles, the latter was *bound to pay that debt, and therefore, as between the two, the debt created by the loan of the check was really and truly the debt of Quarles individually. It does not appear that Read had any knowledge or information as to the state of accounts between Quarles and Steptoe, which, between themselves, may in fact have made this debt the individual debt of Quarles. So far as Read was concerned, he gave credit to the firm of Quarles & Steptoe, and his check was applied to the purposes of the firm, and there can be no doubt about the legal liability of the firm to him for the amount of the check. Even if the paper marked exhibit No. 1 ever was a genuine paper, a question upon which the evidence, as we have seen, is, to say the least of it, extremely conflicting, yet there must have been some arrangement between the parties concerned, made soon after the date of that paper and the check, to-wit: December 23d, 1854, which annulled the said paper and left the firm indebted to Read in the amount of the check; all of which might have been fully explained had the question been raised when all the parties were alive. Exhibit No. 1, if a genuine and unrevoked paper, as much tends to exonerate Quarles as Steptoe; and yet Quarles does not pretend, and never did pretend, that it exonerated him or that he does not still owe the debt. The same, doubtless, may be truly said of Steptoe, though the antiquity of the transaction and the death of some of the chief agents in it make an explanation of it by the appellee impossible at this late day.

The court is therefore of opinion that there is no error in the decree appeal from, and that the same ought to be affirmed.

The learned counsel for the appellees contended that his demurrer to the bill on some one or more of the grounds therein specially assigned ought to have been sustained; and even if it ought not to have been sustained, *that the court of chancery ought to have dismissed the bill upon the pleadings and the proofs in the cause, without directing any issue therein. And he sustained his views on these subjects by a reference to various books and cases. But it is unnecessary to consider and decide the questions thus presented, and we therefore decline doing so; our opinion above expressed, that there is no error in the decree anpealed from, and that it ought to be affirmed, being conclusive of the case in favor of the appellee, and just as much so as if all the points contended for by him were decided in his favor.

Decree affirmed.  