
    Knifong v. Hendricks & als.
    July Term, 1845,
    Lewisburg.
    [44 Am. Dec. 385.]
    (Absent Bbooke, J.)
    1. Judgments — Equitable Relief — Injunction — New Trial. — Upon an application to a Court of Equity to' enjoin a judgment at law, and grant a new trial in tbe case, it is error in the Court to perpetuate the injunction, set aside the judgment, and grant a new trial of the cause which had been terminated: and to finally dispose of the suit in equity.
    2. Same — Same—Judgment as Securityt — Injunction.— In such case the judgment at law is a security for anything the plaintiff at law may be entitled to; and a Court of Equity should continue the injunction, and direct proper issues; and upon the coming' in of the verdict, perpetuate the injunction, or dissolve it in whole, or in part, according to the finding of the jury.
    3. Equitable Jurisdiction — New Trial. — The justices ■ composing a' Court before which a cause is tried, having left the bench after the verdict was rendered, so that a motion for a new trial could not be made to them, a Court of Equity has jurisdiction to award it.
    In 1838, Hendricks, Byars and Cooper, applied to one of the Judges of the General Court for an injunction to a judgment obtained against them in the Count}' Court of Russell, by Felix Knifong. The facts were, that Hendricks & Byars, as partners, recovered a judgment before a justice of the peace against Martin Knifong, and issued an execution thereon, which went into the hands of Joseph Hackney, a constable of the county of Russell, who levied it on a horse found in the possession of Martin Knifong. Felix Knifong, the son *of Martin, claimed the horse as his own; and the constable demanding indemnity, Hendricks & Byars, with Cooper as their surety, executed an indemnifying bond to the constable, in the penalty of 200 dollars. The sale took place, and Felix Knifong instituted an action in the name of the constable, on the bond against the obligors therein, in the County Court of Russell.
    The only plea filed in the cause by the defendants, was payment. On this plea, an issue was made up, and the parties went to trial. On the first trial of the cause, the right of property in the horse was gone into before the jury, without objection by the plaintiff, and the jury not being able to agree upon a verdict, were discharged, and the cause was continued. When the cause was again called, the issue was the same; and after the jury were sworn, the counsei for the plaintiff announced to the counsel for the defendants that they would object to any evidence in relation to the right of property; and insist upon confining it to the issue in the cause. ■ Accordingly, when the defendants offered their evidence upon the title to the property, it was objected to by the plaintiff’s counsel, and rejected by the Court. The counsel for the defendants then asked leave to amend their pleadings, but the Court being of opinion that they had no authority to permit the pleadings to be amended after the jury was sworn, refused the leave; and a verdict was rendered for the plaintiff for the whole amount of the penalty of the bond; though the proof in this injunction case,; as to the value of the horse, was, that in the spring of the year, when Knifong got him, he was worth about thirty-five or forty dollars; but he had improved considerably before he was taken under the execution. .
    After the jury had rendered their verdict, the counsel for the defendants announced that they would ask for a new trial, if the same justices who tried the cause could be gotten on the bench. This, however, could not be *done, one of them having left the courthouse, and returned home.
    The injunction was granted; and the defendant filed his answer, in which he admitted the facts as to the mode in which the cause in the County Court was conducted, but insisted that the defendants were not surprised; but that their counsel were of opinion that the question of title to the property might be made under the plea of payment; and exerted themselves to bring the Court to their opinion. He also stated, and the proofs seemed to sustain him, that the defendants’ counsel had needlessly protracted the cause after the Court had decided the question upon the admissibility of the testimony against them; and that after the verdict was rendered, there was unnecessary delay in making the motion for a new trial, whereby it happened that one of the justices could not be gotten to hear the motion : and that when the justice could not be gotten, his counsel made the proposition to the counsel for the defendants, to submit the motion for a new trial to the three justices present who had presided during the trial, and that proposition was rejected, until it was stated by one of the justices from the bench, that he would have granted a new trial, and that all the rest, including the absent one, would give the same opinion. Then they agreed to submit the motion to the three justices present, but the plaintiif’s counsel declined it.
    The cause having been matured, came on for hearing on the 20th of April 1838, when the Court perpetuated the injunction: and further decreed that the judgment at law should be set aside and cancelled; and a new trial of the cause be had before the County Court, in which the defendants should be allowed to amend their pleadings. And there being, in the opinion of the Court, no reason for continuing the cause longer in the Court, it was ordered that it should be stricken from the docket.
    Prom this decree Knifong obtained an appeal to this Court.
    *The Attorney General, for the appellant, and Patton, for the appellees, submitted the case.
    
      
      Equitable Relief against Judgments. — See mono-graphic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425. See foot-note to Byrne v. Ed-monds, 23 Gratt. 200.
      Same — Adequate Remedy at Law. — The principal caséis distinguished in Hudson v. Kline, 9 Gratt. 385, on the ground that but for the interposition of the court of equity the parties, who complained of the judgment in that case, would have been entirely without remedy. See footnote to Hudson v. Kline, 9 Gratt. 379.
      Same — Course to Be Pursued, — In Wynne v. Newman, 75 Va. 815, it was said: “There are cases in’ which the court has required the defendant in chancery to submit to a new trial in the action at law, and restrained him from enforcing the judgment complained of. But the regular course would seem to be for the chancery court to order such issue or issues as may be proper, and to base its decree on the finding of the jury at the hearing, either dissolving or perpetuating the injunction, in whole or in part, according to circumstances. Such was the course pursued by this court in Kni-fono'o. Bendriclcs, 2 9raU. 213.”
      Same — Judgment Stands as Security. — The principal case is cited in Bank v. Hupp, 10 Gratt. 33, for the proposition that where there is a recovery at law, and the defendant seeks relief in equity in the nature of a new trial, the judgment at law stands as security for what the plaintiff may be justly entitled to, and the court of chancery will continue' the injunction and direct the proper issues, and upon the coming in of the verdict, will perpetuate the injunction or dissolve it, in whole or in part, according to the findings of the jury. See also, the principal case cited on this point in Nelson v. Phares, 33 W. Va. 279,10 S. E. Rep. 398; Richmond & Petersburg R. R. Co. v. Shippen, 2 P. & H. 335.
      Same — Same.—In Grafton, etc., Co. v. Davisson, 45 W. Va. 12, 29 S. E. Rep. 1030, it is said ; “The court must not at once set aside the judgment, and grant a new trial, when it determines that a retrial should be had, but must await its result, as the judgment ought to stand as security until it is finally determined whether it shall be perpetually enjoined or not. Knifong v. Kendricks, 2 Gratt. 212; Bank v. Hupp, 10 Gratt. 33 ; wynne v. Newman, 75 Va. 811; Bart. Ch. Prac. 58 ; 2 Story’s Eq. Jur. sec. 1574. The judgment ought to be allowed to stand as security until the final decree, as its lien is good for what may be found to be really due, though obtained by fraud, accident, or surprise, and though what may be due be the whole or only part of the debt recovered (Bank v. Vanmeter, 4 Rand. 553, Judge Green’s opinion ; Judge Lee’s opinion, Bank v. Hupp, 10 Gratt. 33); justas a judgment reversed in partis all the while a lien, 2 Bart. Ch. Prac., sec. 295 ; Moss v. Moorman, 24 Gratt. 97.”
      Decrees — Partial Reversal. — In Shepherd v. Chapman, 83 Va. 224, 2 S. E. Rep. 273, the court said ; “It is familiar doctrine, that where a decree is reversed in part and affirmed as to the residue, the reversal in part does not destroy the lien of so much of the decree as is unreversed or affirmed ; and one prominent reason for this is, that equity looks to the substance of things, and not to the mere form. 2 Barton’s Chy., sec. 295; Knifong v. Kendricks, 2 Gratt. 212 ; Moss v. Moorman, 24 Gratt. 97. ” See also, foot-note to Moss v. Moorman, 24 Gratt. 98.
    
    
      
      New Trial — Justices Leave Bench before notion for. —In Grafton, etc., Co. v. Davisson, 45 W. Va. 12, 29 S. E. Rep. 1029, it is said : “Audi just notice that in Knifong v. Kendricks, the fact that the justices who tried the case had left the bench, preventing a motion for a new trial, was held ground for equity’s intervention to give a new trial. 2 Graft. 212.” See also, Terrell v. Dick, 1 Call 553. The whole subject of this note, however, has been fully set forth in monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, to which special reference is made.
    
   ALGPJST, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears the appellees were surprised by the exclusion at the second trial of evidence which had been admitted without objection at the first trial, and that in consequence thereof a recovery was obtained for a sum far exceeding the amount of damages sustained, a new trial should have been granted, with leave to the appellees so to amend their pleadings as to present the real merits of the controversy.

The Court is further of opinion, that as the appellees were prevented from making such motion for a new trial by the dispersion of the justices composing the Court, it was a proper case for relief in equity.

But the Court is of opinion, there was error in perpetuating the injunction, setting aside and cancelling the judgment, directing a new trial of the cause which had been terminated, and in finally disposing of the suit in equity.

The judgment was a security for any thing the appellant should thereafter appear to be entitled to; and the Court should have continued the injunction, directed proper issues, and upon the coming in of the verdict, perpetuated the injunction, or dissolved it in whole or in part, according to the finding of the jury. The decree of the Court below is, therefore, reversed with costs, and this Court, proceeding to render such a decree as the Court below ought to have rendered, it is adjudged and decreed that the injunction to the judgment in the bill and proceedings mentioned, be continued until a final hearing of the cause. And it is further adjudged and ordered, that an issue be made up and tried at the bar of said Circuit Superior Court, on the law side thereof, to ascertain and try, first, whether the horse in the condition of said bond of indemnity mentioned, was at the *time of the seizure thereof by the officer under the execution in said bond described, the property of said Felix Knifong or not; and if he was the property of said Felix Knifong at the time of such seizure, then to ascertain and assess the damages ' sustained by said Felix Knifong by reason of the seizure and sale of the property; and that the verdict of the jury be certified in order to a final decree.  