
    Lewisburg.
    Moffett v. Bowman.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    Í. Under the circumstances, the testimony of jurors received to prove that they rendered their verdict under a mistake as to its legal effect.
    2. A bill of exceptions to the opinion of the Court refusing to grant a new trial, does not state the facts proved on the trial; but it states the facts which the evidence tended to prove: and taking it that the evidence of the appellee proved all that it tended to prove, and that the evidence of the appellant only tended to prove his conflicting pretensions, this Court will consider whether, upon the facts as they thus appear, the verdict and judgment are or are not correct.
    
      3. M and Z, creditors of S, claim to be entitled to a sum of money in the hands of St. to be divided ratably between them. St. pays the money to M and Z jointly, at one and the same time, and they divide it ratably between them. In fact, the money should have been divided between M and B; and the proportion of M would then have been less than he received. The money not having been received by M and Z for their joint use, but to be applied ratably, B’s right of action is not against both jointly, but against each separately, for the amount that each received to which B is entitled.
    This was an action of assumpsit in the Circuit court of Rockingham county, by Samuel Bowman against Isaac Moffett. The declaration contained only the general indebitatus count for money had and received. The account filed with the declaration was, “ To Bowman’s proportion of a bond executed by Philip Liggett to J. C. Banner for 400 dollars, due 20th of October 1845, and left by said Banner with John Strayer for the benefit of said Moffett and Bowman; and which bond was afterwards collected by said Moffett; 262 dollars 2 cents, with interest from the 4th of January 1842.
    The defendant appeared and pleaded non assumpsit, on which there was issue; and on the trial, the jury rendered a verdict for the plaintiff for 203 dollars 14 cents, with interest thereon from the 30th of December 1841, till paid: and there was judgment accordingly.
    After the verdict and judgment had been rendered, the defendant moved the Court to set them aside, and grant him a new trial; which motion was overruled by the Court, and the defendant excepted. The bill of exceptions is as follows:
    
      Bowman against Moffett. Upon the trial of this suit the plaintiff introduced proof tending to prove that one Josiah C. Banner had placed in the hands of one John Strayer, a bond on one Philip Liggett, which bond was to be converted into money, and the avails to be applied ratably to the several debts of plaintiff and of defendant, who were creditors of Sanner; and also that the bond was converted into money by delivering it to Liggett the obligor, who took it at a discount of 6 per cent, per annum, (the bond having about 6 years to run,) and 5 per cent, additional j that the money was paid to defendant Moffett and one John D. Zirkle jointly, at one and the same time, and amounted to 296 dollars. The defendant offered evidence tending to shew that the plaintiff Bowman had refused to have any thing to do with the bond of Liggett; and the plaintiff offered evidence tending to prove that he assented to and accepted the arrangement of Sanner. Thus upon the question whether the plaintiff had assented to and accepted the arrangement by Sanner, there was a conflict of testimony. The defendant further offered proof tending to prove that in the event of Bowman's refusing to accept Sanner's arrangement, then the avails of Liggett's bond were to be applied to the debt of Moffett and one John D. Zirkle, ratably, in due proportion to their amounts. The jury having heard all the evidence and arguments of counsel, after deliberation of several parts of days, came into Court and rendered a verdict in these words: “We the jury agree that Bowman and Moffett shall have the money in proportion to their several debts, as Banner intended and thereupon in open Court the plaintiff’s counsel remarked in the presence of the Court and jury, that the verdict might be rendered certain, if the amount of Moffett's, debt on Banner could be ascertained, of which as the Court certifies, no evidence had been offered. The debt of the plaintiff on Sanner having been proved by production and proof of his bonds, and the defendant Moffett having given information that his debt was 119 dollars or 120 dollars, a calculation was made in figures following, to wit: [This was a calculation which, taking the debt of Boioman at 262 dollars 60 cents and that of Moffett at 120 dollars, ascertained the ratable proportion of the money received, to which Moffett was entitled, to be 92 dollars 86 cents, and to which Bowman was entitled, to be 203 dollars 14 cents.]
    After the calculation was made, the verdict which ’ was rendered, was written and read by the counsel for the plaintiff alone, in the hearing of the jury; and the defendant’s counsel suggested that probably the jury might have intended to give plaintiff only the difference between Moffett's whole debt 120 dollars, and 92 dollars 86 cents, his ratable part of the fund, if Bowman was to participate in the fund. Some discussion took place at the bar, whether the informal finding of the jury could bear such a construction; and the jury having been sent to their room to consider again of their verdict, returned into Court and rendered the verdict which the plaintiff’s counsel had written. This verdict was again ,read audibly in the hearing of the jury, and assented to by the jury; and the defendant’s counsel insisted on having the jury polled, by having them called one by one; and interrogated each one, whether that verdict (which was again audibly read) was his, and was answered by each one, that it was his verdict.
    A short time after the jury had rendered their verdict and had been discharged, the defendant’s counsel suggested to the Court that some of the jury had made a mistake in rendering a verdict for 203 dollars 14 cents, instead of 27 dollars 16¿ cents: and moved for a new trial on the ground of that mistake; and proposed to have the jurors called in again in order to have them interrogated; which application the Court at the time deferred, as it was engaged in another cause; but required the defendant to exhibit affidavits in support of his motion for a new trial; and thereupon the defendant exhibited the affidavits of Thomas Lindon and others, in the words and figures following, to wit:
    The undersigned, who were members of the jury which tried the case of Bowman v. Moffett, at the October term of the Circuit Superior court of Rocking-
      ham, do hereby certify that the verdict as returned and recorded does not contain the verdict which they intended to render, and that the same was returned by them under a mistake of its legal effect. Immediately after they were discharged, and before they had left the courthouse yard, they were informed that the effect of their verdict was to give the plaintiff 203 dollars 13 cents damages, with interest from 30th December 1840, until paid; and such not being their purpose, they felt it their duty to make known the error into which they had been led, to the defendant and one of his counsel, that the error might be corrected. This communication was voluntarily made, and without solicitation on the part of the defendant or his counsel.
    This error arose thus: the jury originally came into Court with a verdict in the following words: “We the jury agree that Bowman and Moffett shall have the money, in proportion to their several debts, as Banner intended.” The plaintiff’s counsel then drew that verdict, which was finally rendered, and which the jury without exception, believed would have the effect, not of giving the plaintiff 203 dollars 13 cents, damages, but only 27 dollars 16 J cents, that being the difference between 120 dollars, the sum which Moffett actually received, and his ratable proportion of the fund, 92 dollars 83½ cents, which he was entitled to receive. We hereto append the calculations made by the jury. The whole fund received by Moffett and Zirkle was 296 dollars. By the principal calculation, which is in the handwriting of Thomas Lindon, the foreman of the jury, it was ascertained that the proportion of the fund which Moffett the defendant was entitled to receive, was 92 dollars 83½ cents; by a second calculation made by Felix T. Sheets, another of the jury, on the same piece of paper, and embraced in the black circle, it was ascertained that that sum deducted from the sum actually received, 120 dollars, left a balance of 27 dollars 16½ cents, which the jury intended to give. These calculations were all made in the jury room, and the paper containing them was returned by the jury to the clerk, with the other papers in the cause.
    Given under our hands and seals, this 13th day of October 1847.
    
      Thomas Lindon,
    
    
      Samuel Sterling,
    
    
      Benj. B. Ewing,
    
    
      Felix T. Sheets,
    
    
      Henry M. Lofland,
    
    
      Peter Walker,
    
    
      Henry Sipe,
    
    
      Joseph Huling,
    
    
      David G. Ray.
    
    Sworn to this day before me, William G. Stevens, a justice of the peace for Rockingham county.
    
      Wm. G. Stevens, J. P.
    
      October 12 th, 1847.
    
      Lindon's calculation ascertained the amount of the fund to which Bowman was entitled; and that of Sheets ascertained the amount to which Moffett was entitled; which was according to his calculation, 92 dollars 83½ cents; and this sum was then deducted from 120 dollars, the amount of his debt which he had received, leaving 27 dollars 16½ cents.
    “ I was in the jury room where the jury had retired in the case of Bowman v. Moffett, at the October term of the Superior court. I had gone to command silence, as I thought they were making a noise sufficient to interrupt the business of the Court; one of the jury asked me if twenty-seven dollars and some cents would be right; I told them I knew nothing about the verdict, and asked them if they had agreed to the verdict on the papers. They told me that they had; I then told them to come into Court, and while descending the steps going into the Court room, I heard one of the jury (I think Henry Lofland) say the verdict was for 27 dollars and some cents in favour of Bowman.
    
    
      A. S. Byrd, D. S. R. C.
    Sworn to this day before me, Samuel Shacklett, a justice of the peace for Rockingham county.
    
      Samuel Shacklett, J. P.
    
      October 14th, 1847.
    Rockingham County, to wit:
    
    This day, Andrew Houck personally appeared before me, a justice of the peace in and for the county aforesaid, and made the following statement on oath in the case of Samuel Bowman v. Isaac Moffett, that in a conversation with Thomas Lindon in Houck’s presence, he Lindon, one of the jurors in said case, a short time after the verdict was rendered, stated he understood the intention of the jury to be, that the money placed in Moffett’s hands after the sale of the note, should be divided between Moffett and Bowman in proportion to their debts, and that Moffett should pay Bowman upwards of 200 dollars; and upon Lindon being asked if he intended that Moffett should pay Bowman only 20 dollars or 16 dollars, one of which he thinks was the sum mentioned, he replied that such was not the intention of the jury.
    Given under my hand and seal this 15th day of October 1847.
    
      Wm. G. Stevens, J. P.
    Rockingham County, to wit:
    
    
      George Rader this day personally appeared before the subscriber, a justice of the peace in and for the said county, and made affidavit that he was one of the jury which tried the case of Bowman v. Moffett, during the present term of the Superior court of said county, that the jury had the subject under consideration for parts of three days, and talked over the subject very frequently, and that the jury at last agreed that the money received from Liggett should be divided between the plaintiff and defendant ratably, in proportion to the amount of their respective debts; and that a verdict ought to be rendered for the plaintiff against the defendant for his (plaintiff’s) ratable portion of the debt. Affiant further saith that a number of the jury insisted for a time that Moffett should only pay the difference between the money he actually received and his ratable part of the debts, but the balance of the jury insisted that Bowman should recover against Moffett his ratable part of the debt. Affiant further stated, that he himself understood the verdict to be for 203 dollars 14 cents with interest, and that Moffett was subject to a recovery for that amount. As to the allegation that it was understood by the jury or some of them, that the verdict would subject Moffett to the payment of about 27 dollars, affiant saith that he did not so understand it; but from what was said in open Court and in the jury room, he had not then and has not now any doubt that it was the purpose of the jury to subject Moffett to the payment of the verdict so rendered. And further affiant saith not.
    Given under my hand.
    
      Wm. G. Stevens.
    
    
      October 16th, 1847.
    The Court not being able to perceive how it was possible for any mistake to have taken place in the manner supposed by the jury, and being moreover entirely satisfied with the verdict, overrules the motion for a new trial on the alleged ground of mistake. To this opinion of the Court the defendant excepts, and prays that his exceptions may be signed, sealed and made a part of the record, and it is done accordingly. And the defendant applied to this Court for a supersedeas, which was awarded.
    The cause was argued in writing by Stewart, for the appellant, and Samuels, for the appellee.
    For the appellant:
    This is an appeal from the refusal of a new trial. Bowman sued Moffett for a sum of money which he alleged Moffett had received to his use. The evidence clearly discloses that the utmost sum which he could have any claim to recover, was 27 dollars 16 cents. That sum the jury intended to find for the plaintiff. Their informal verdict proves it. The calculations in the figures and handwriting of the jury prove it. The affidavits of the jurors and sheriff prove it. But by some strange mistake of the legal' effect of their verdict, the jury found for the plaintiff 203 dollars 14 cents, instead of 27 dollars 16 cents.
    The action was for money had and received to plaintiff’s use. The whole sum which defendant received was, unquestionably, but 120 dollars; of this sum the jury themselves say Moffett was entitled to retain 92 dollars 86 cents. The difference between that sum and 120 dollars, was the amount they intended to hold Moffett responsible for.
    But the verdict requires Moffett, out of 120 dollars, to pay 203 dollars 14 cents.
    But Mr. Samuels says we ought to have pleaded in abatement the joint liability of Zirkle. Not so. How could we know, except from the declaration, what would be the pretensions of the plaintiff ? Moffett was sued singly for money received by him. How could he divine that in such an action, plaintiff would try to hold him responsible for a joint liability with another ? How could we have tendered the plea ? The plaintiff might well have replied, “ it is a departure”—we are seeking to hold you bound for your own receipts. In point of fact there was no joint liability. Moffett received his share and Zirkle his. Each was responsible for his own receipts. It is true that the money was paid to the parties at the same time, but Moffett received only 120 dollars, and Zirkle the balance.
    Under these circumstances, even if the receipt was in one sense joint, yet as they at once divided it according to their respective rights, the plaintiff might have proceeded against them jointly for their joint receipt, or separately for their separate appropriation of it. Having elected to proceed separately, the plea in abatement would not have been proper.
    That injustice was done is evident from all the proof in the cause. The Judge says he could not understand how the jury could have been mistaken. That may be; but they have sworn to the fact, and their figures and the affidavit of the sheriff sustain their oaths.
    I presume the solution is, that the jury thought Bowman was entitled to 203 dollars 14 cents, but that Moffett was to pay 27 dollars 16 cents, and Zirkle the balance.
    The only authorities to which I will refer, are Cowperthwaite v. Jones, 2 Dall. R. 55; and Cochran v. Street, 1 Wash. 79. In the former case the doctrine is stated thus: “ Whenever it appears that manifest injustice has been done, or that the jury have proceeded on an evident mistake, either of law or. fact, or contrary to strong evidence, a new trial will be granted.”
    As some of the cases referred to by Mr. Samuels, refer to the admissibility of the affidavits of jurors, I beg leave to refer to the fact that the case does not rest exclusively on their testimony. We have the sheriff and the written evidence besides. But upon the authority of Cochran v. Street, the affidavits of jurors given voluntarily and without any circumstances of suspicion, may be received to prove the mistake. Here the error was of a clerical character in reducing the verdict to form.
    
      The appellant begs leave to suggest another point. He was an acknowledged creditor of Banner, and had a right in conscience to receive his whole debt. He was guilty or no wrong in receiving it when tendered to him by Banner's agent. His case is entirely different from what it would have been if he had not been a creditor of Banner. There can be no implied promise on his part to pay Bowman. If any body did wrong, it was Liggett; and if any body should be sued, it should be Liggett. He and not Moffett is responsible. Suppose A is indebted to B and C, to each 100 dollars. He places 100 dollars in the hands of D to be paid to B, but D by mistake pays it to C, who surrenders his bond, which is cancelled. B certainly could not maintain an action against C to recover that 100 dollars. He had a moral right to receive his debt from A; he knew nothing of B in the transaction; there was no privity between them; and there could be no ground for an implied contract between them. If G knew of the trust reposed in D by A, and received the money with a knowledge of the trust, then, in equity, he might be treated as a trustee and compelled to account. But there would be no action at law; the suit could not be maintained. See Bize v. Dickason, 1 T. R. 285.
    For the appellee:
    This is an action of assumpsit brought by Bowman against Moffett for money had and received to the use of the plaintiff.
    The record shews that Sanner had deposited with Strayer a bond given by Liggett, the avails of which were to be divided between Moffett and Bowman, ratably in proportion to the amount of the debts due to them from Sanner. If Bowman refused to accede to Sanner's arrangement, then Moffett and John D. Zirkle were to divide the money between them. The money was jointly received by Moffett and Zirkle.
    
    
      The jury find that Bowman’s right to his ratable portion was superior to that of Moffett and Zirkle, who by their joint act of receiving were jointly liable to Bowman. Suit was brought against Moffett alone, who waived his right to have Zirkle jointly sued by failing to plead in abatement; the case was therefore properly proceeded in against Moffett alone. See 1 Chitt. Pl. 36 and 442; Robertson v. Smith, 18 Johns. R. 459; Brown v. Belches, 1 Wash. 9.
    The plaintiff in error seems to place great stress on the fact that Moffett, if liable at all, was jointly liable with Zirkle. This may be so ; but failing to plead in abatement, he takes upon himself the joint responsibility of both to the plaintiff.
    No question is presented upon the record about the superiority of Bowman’s right over that of Moffett and Zirkle: the jury decided that question in favour of Bowman, and no new trial was moved for, because that finding was against evidence.
    The superiority of Bowman’s claim to his ratable portion of the money being established and acquiesced in, it would seem that the whole matter was disposed of.
    The theory of the case presented by the plaintiff in error is this: Although Bowman’s right to his ratable portion of the fund is superior to that of Moffett and Zirkle; and although they are jointly liable to Bowman ; still, as Moffett had a claim to the residue of the fund equally good with Bowman’s, which residue he also received jointly with Zirkle, therefore Moffett should not be held responsible for Bowman’s money improperly received by him and Zirkle. It is submitted that the fact that Moffett’s title to part of the money was good, does not exempt him from liability for another portion to which he had no title. If Moffett had contented himself with receiving his own ratable part of the fund, he would never have been drawn in question ; but having jointly with Zirkle received not only his own, but also Bowman's part, he should not expect to evade responsibility.
    The superior right of Bowman being acquiesced in, it is yet objected that the recovery of Moffett should be for only 27 dollars 16 cents, the alleged excess of receipt above his ratable part; this sum is gratuitously assumed to be the excess received, when the record distinctly shews that the excess was 203 dollars 14 cents, and received jointly by Moffett and Zirkle.
    
    It is alleged to have been the purpose of the jury to subject Moffett to the payment of only 27 dollars 16 cents. If Bowman could only recover this amount of Moffett, then he could not recover more of any other person; he could not recover at all of Moffett and Zirkle, or of Zirkle. See Wilkes v. Jackson, 2 Hen. & Munf. 355; Ammonett v. Harris & Turpin, 1 Hen. & Munf. 488; Chitt. Pl. 32; Willings &c. v. Consequa, Peter’s Circuit court R. 301; Ward v. Motter, 2 Rob. R. 536.
    
      Bowman's right to his ratable portion (amounting to 203 dollars 14 cents,) is recognized by the jury in their informal finding, “ that Bowman and Moffett shall have the money in proportion to their several debts, as banner intended." Their verdict, when rendered certain and put in form, establishes his right and ascertains the amount; each individual juror, when specially interrogated, approves the verdict; the plaintiff in error acquiesces in the existence and amount of Bowman's claim by omitting to move for a new trial because the verdict is against evidence; the Court declares itself “ entirely satisfied" with the verdict.
    It is not alleged by the jurors that Bowman was not regarded by them as entitled to his ratable portion of the fund; it is not alleged by them that 203 dollars 14 cents is not the true amount of that portion; the end and purpose was, or should have been, to give Bowman a verdict for the amount he was entitled to; yet, by way of carrying out and executing this purpose, some °f the jurors say they intended to give a verdict for 27 dollars 16 cents, which would have the effect (if any) of precluding all recovery of a larger amount. Regarding the attainment of full justice as the end, and the verdict as the means, it will be found that the alleged intended means will effectually defeat the end.
    Shall the end, now fully attained, be sacrificed, because, as some of the jury say, the mistaken and absurd means contemplated by them were not adopted ?
    The great object of all trials is to do justice between the parties; the justice of this case will be to give Bowman the money conceded on all hands to be due to him; if the. record, instead of being regular and free from error, had even shewed irregularities and error, the Court would not set aside the verdict. In addition, let it be remembered that there is great danger in allowing jurors to assail the work of their own hands. See Mather v. Bailey, 1 Price’s Exch. R. 1; Davis v. Taylor, 18 Eng. C. L. R. 331; 3 Black. Com. 392; Burgess v. Langley, 44 Eng. C. L. R. 377; Wickes v. Clutterbuck, 9 Eng. C. L. R. 490; Cox v. Kitchin, 1 Bos. & Pul. 338; Edmondson v. Machell, 2 T. R. 4; Price's ex'or v. Warren, 1 Hen. & Munf. 385; Goode v. Love's adm'r, 4 Leigh 635.
    I have hitherto treated this case as if the jury had really made a mistake. Yet the Court obviously did not believe that any mistake had been made which would entitle Moffett to relief. A short review of the facts will shew that their mistake, if it existed at all, was not one of fact. The jury informally found that the money arising from Liggett's bond should be divided between Bowman and Moffett. The precise amount could only be ascertained by finding out the amount of Moffett's debt against Banner; Moffett voluntarily stated the amount of his debt, and a calculation was made in the presence of the jury, and a verdiet written and read to them. The defendant’s counsel objected to the verdict, and suggested that the jury might have only intended to allow the difference between Moffett's whole debt and his ratable part of the fund; the jury were sent out again to consider of the verdict with this suggestion fresh in their minds: they made a calculation for themselves, and returned the verdict which was previously prepared: it was read to them a second time, and agreed to by them all; they were polled after hearing the verdict again read, and each one declared his concurrence in the verdict.
    There is no pretext that the verdict was falsely read or misunderstood by the jury as it was read. There is no pretext that they did not intend to find that Bowman had not refused to accede to Banner's arrangement, and therefore Zirkle's contingent right never became vested. There is no pretext that the jury did not intend to find that Moffett and Zirkle jointly received the money; the only mistake alleged is, that the jury intended to sever the amount wrongfully received, and make Moffett liable for 27 dollars 16 cents, and (we may presume) make Zirkle liable for the residue ; and this in the face of the fact, that the receipt was joint; and in the face of the settled law, that Bowman could recover nothing more than he might recover in this suit.
    The verdict, as rendered, carries out the intention of the jury ; the means contemplated (a verdict for 27 dollars 16 cents) would defeat that intention. It is respectfully submitted that the judgment should be affirmed.
   Baldwin, J.

delivered the opinion of the Court.

It seems to the Court from the evidence adduced on the motion for a new trial, (which evidence was, under the circumstances, properly received by the Circuit court,) that it was the intention of the jury, by their decision, to divide pro rata between Bowman the plaintiff and Moffett the defendant in the action, the proceeds of Liggett's bond; which intention might have been accomplished by the verdict for the plaintiff, if he had made Zirkle a defendant to the action, as well as Moffett, as he ought to have done according to his pretensions of their joint liability to him; but of which failure to do so, in that view of the case, Moffett could not avail himself, inasmuch as it was an objection proper only for a plea in abatement. The intention of the jury, therefore, was not accomplished by their verdict for the plaintiff, the effect of which was, instead of giving Moffett his ratable proportion of said proceeds, to subject him solely to the ratable proportion of Bowman; and the mistake of the jury probably arose from not adverting to the consequence of Zirkle's not being a defendant in the action. But whatever may have been the cause, the mistake itself is established by the evidence, and furnished a sufficient reason for a new trial, unless it had appeared to the Judge that the merits of the case were attained by the verdict of the jury. The Judge, it is true, was satisfied with the verdict, and if the facts upon which his opinion was founded, did not appear from the bill of exceptions, it would be a question proper for consideration, whether this Court would revise his decision. But though the facts actually proved at the trial are not detailed in the bill of exceptions, yet the facts which the evidence given tended to prove, are therein set forth: and by conceding that Bowman's evidence proved all that it tended to prove, and that Moffett's evidence only tended to prove his conflicting pretensions, the question is presented in the most favourable aspect for Bowman, whether the Judge ought to have been satisfied with the verdict.

In this aspect of the case, it appears that one Sanner had placed in the hands of one Strayer, the said bond on said Liggett, which bond was to be converted into money, and the avails to be applied ratably to the several debts respectively due to Bowman and Moffett, who were creditors of Banner ; that the bond was converted into money, which was paid to Moffett and Zirkle, who claimed the same on the pretension that Bowman had refused to accept the arrangement, and that in that event Banner had directed the proceeds to be applied ratably to the several debts due from him to Moffett and Zirkle respectively. The opinion of the Judge was, of course, founded upon the idea that Bowman was entitled to a verdict against Moffett for the whole amount so paid to Moffett and Zirkle, inasmuch as it was paid to them jointly at one and the same time. But it seems to the Court that this idea was incorrect, the money not having been received by Moffett and Zirkle for their joint use, but to be applied ratably, and there being no pretence that Moffett retained more than his own proportion : so that, in substance and effect, each of them appropriated only the sum claimed by himself in discharge of his several debt, and cannot be treated as having received the share of the other: and consequently that Bowman’s right of action was not against both jointly, but against each respectively.

It seems therefore to the Court, that the judgment of the Circuit court is erroneous: And it is considered that the same be reversed and annulled, with costs to the plaintiff in error. And it is further considered that the verdict of the jurors be set aside, and the cause remanded to the Circuit court, for a new trial thereof.  