
    Bennett v. Hardaway Administrator of Jones.
    Decided, Feb. 21st, 1818.
    i. Bill of Exceptions — Certification of Evidence  — If a motion for a new trial, on the ground that the verdict is contrary to evidence, be overruled, a bill of exceptions to the Court’s opinion ought not to stale all the evidence given into the Jury, but only the facts appearing to the Court to have been proved.
    The point determined in this case is of great importance in relation to the practice; the question presented by the record, being, whether, after a verdict, and motion for a. new trial overruled, all the evidence given in to the Jury, or only the facts proved,'’should be stated in a bill of exceptions to the Court’s opinion overruling such motion.
    The suit was detinue for sundry slaves, on behalf of Hardaway administrator of Jones against Bennett, in the Superior Court of Mecklenburg County. On the plea of non detinet, the Jury found a verdict for the plaintiff. The defendant immediately moved the Court for a new trial; the reason assigned for which was not expressly set forth in the record. The Judge took time to consider until the next day, and then overruled the motion ; whereupon a bill of exceptions was signed and sealed, setting forth all the evidence said to have been adduced on the trial; among- which was the paroi testimony of many witnesses.
    Judgment being entered according to the verdict, the defendant appealed.
    The cause was twice argued, by Bouldin for the appellant and May for the appellee; in the first instance upon the merits chiefly; and, in the last, particularly upon questions (suggested by the Court,) whether the bill of exceptions was properly taken, and whether this Court could now, on the ground that the Verdict was contrary to evidence, grant a new trial.
    *The last argument took place (in the absence of the Reporter) in February 1818, before a Court consisting of all the Judges, except Judge Fleming: but the point decided is fully discussed in the following opinions.
    
      
       Bill of Exceptions — Certification of Evidence. — In the principal case, a motion was made in the lower court for a new trial on the ground that the verdict was contrary to the evidence, and the motion being overruled, a bill of exceptions was taken which certified all the evidence given to the jury instead of the facts which appeared to the court of trial to be established by the evidence. The evidence as it appeared on the record was conflicting and contradictory. It was held by the appellate court that the bill of exceptions was not properly taken, that it ought to have stated only the facts appearing to the court to have been proved, and that the judgment of the lower court refusing a new trial could be reversed only upon a certificate of the facts proved. The principle upon which this decision rests is that the reversing court should have the same lights and act upon the same data as the inferior court and that it will not undertake to determine what credit should be given to the oral testimony of witnesses whose credibility it has not the same means of testing as were possessed by the court and jury who saw and heard the witnesses testify and observed their whole demeanor. Perhaps no other Virginia case has been so often cited or discussed by subsequent Virginia cases as Bennett v. 2Ia?‘davjay, but the principle therein set forth has remained unshaken. But from a resume of the cases, it will be seen that there has been a very gradual but growing disposition on the part of the court to relax the rule established in Bennett v. Hardaway, prohibiting the court from a judgment granting or refusing a new trial when the certificate contained the evidence instes d of the facts, where-ever it could be done without invading the province of the jury, and referring questions as to the weight of evidence and credit of witnesses to the appellate court, and revising the judgment of the trying court upon lights and data inferior to those possessed by that court. But, in modifying the rule laid down in the principal case, the judges (often) expressly disclaim any intention of departing from the principle of Bennett v. Hardaway, and repeatedly express their approval of the decision in this case. Thus, in Carrington v. Bennett. 1 Tjeigh 340. there was an action on a bond to which the defense of gaming was set up. The evidence on the part of the plaintiff was the bond alone. The defendant coultl not prove by a witness, that that identical bond was executed for the gaming consideration, but he gave in evidence certain circumstances, and acknowledgments of the plaintiff, from which the fact of the vicious consideration might or might not, be inferred. There was no conflict or contradiction in the evidence given of those circumstances, and they were therefore certified as having been proved, that is. they were certified as facts. The jury, however, did not from them infer the fact of the illegal consideration of the bond, but made the opposite inference, and the trying court refused to grant a new trial. But, the appellate court was of the opinion that the fact that the bond was given for a gaming consideration was properly and irresistibly deducidle from the circumstantial facts admitted and proved and this court reversed the judgment and directed a new trial; thereby, In eifect, determining that with the facts before it, it must pronounce its own j udgment upon them; that having the same lights, it must deduce its own inferences. In this case, Judge Cabk, differing from the maj ority of the court, held that the certificate was a certificate of evidence, and under the authority of the principal case, was not reviewable by the appellate court. Judge Green, one of the majority, said, on the other hand (347): “I think the exception m this case was well taken. The effect of the case of Bennett ■». Hardaway, is, that it is not competent to a party, byway of an exception to the granting ol or refusal to grant a new trial, to refer to the judgment of the appellate court, the credit of the witnesses ; and that, therefore, the facts considered by the court as proved upon the trial, and not the evidence by which they a.re proved, should be stated. If the rule there laid down, were considered as extending lurther than this, and to require, that the court should not state the proved facts from which the fact in issue might or might not be inferred, but only the inference made by the court; then, there could be no case, in which an exception to the allowance or refusal of a new trial, could be successfully taken, (except where the court below erred in declaring tb e law arising from an admitted state of facts) even in a case, where the ground of the application for a new trial, is, that the verdict was contrary to the evidence, for, if the proof of the fact in issue, was direct and contradictory, the court must state, that the fact was proved, in its judgment, according to the credit it gave to the testimony: and to sucha case the rule in Bermettn. Hardaway, applies. But, in a case in which there was no direct evidence to prove the fact in issue, hut only proof of other facts from which the matter in issue might or might not he inferred; if the court, instead of stating the proved facts, from which such an inference might arise, were required to state its own inference, this would he, not to state the factor the facts proved, hut the judgment of the court as to their effect: and there would be nothing for the appellate court to decide or act upon. Yet, the j ury and the court below may err as essentially, and as fatally to the rights of the parties. in their inferences of other facts from the admitted facts, as in respect to the law arising from the facts proved. And, as I understand the decisions of this court, such an error may he corrected by exception and appeal.” The opinion of Judge Co alter was to the same effect. The next case dealing with this subject was Ewing v. Ewing, 2 Leigh 837. In this case, while the decision in the principal case is expressly approved, it was held that though a hill of exceptions to an opinion of the court overruling a motion for a new trial spread the whole evidence, instead of the facts, on the record, yet, if the evidence is not conflicting, the hill is well taken and will enable the appellate court to review the judgment of the inferior court; for no question as to the credibility of witnesses can arise. But this case goes further and lays down the rule that the appellate court will not reverse the judgment of the lower court unless after excluding all the (parol) evidence of the exceptor, and admitting the truth of all the evidence of the adverse party, the judgment still appears to he wrong. Other cases have gone even further and held that the appellate court will review the judgment of the lower court on a hill of exceptions certifying the evidence even though the evidence is conflicting; hut these cases have adhered to the principle laid down in Ewing v. Ewing, that the appellate court will not reverse the judgment of the lower court unless the judgment appears wrong after all the evidence of the exceptor has been rejected; and all of the evidence of the adverse party has been given full force and credit. But even these cases do not controvert or in any way clash with the doctrine of the principal case, but are entirely consistent with it, for, under the rule which they lay down the appellate court does not have to decide on the credit of witnesses, but proceeds on the admission of their credit; and surely if a judgment against a party, after he has been stripped of all his own oral evidence and all his adversary’s evidence has been accorded full force and credit, still appears to be wrong, that judgment ought to be reversed. See, citing, discussing and setting forth the true import of the principal case. Vaughan v. Doe, 1 Leigh 295; Carrington v. Bennett, 1 Leigh 843, 345. 346. 347. 349, 350: Ewing v. Ewing, 2 Leigh 340,342,345,346; Jackson v. Henderson, 3 Leigh 214, 215; Brugh v. Shanks. 5 Leigh 604; Green v. Asby, 6 Leigh 139, 140,141, 143, 146,147, 148, 150: Callaghan v. Kippers, 7 Leigh 613; foot-note to Rohrv. Davis, 9 Leigh 30; Slaughter v. Tutt, 12 Leigh 159,160, 161, 162,163,164; Taliaferro v. Franklin, 1 Gratt. 340, 342, 343; Patteson v. Ford. 2 Gratt. 26, 27; Pasleyv. English. 5 Gratt. 147; Willard v. Overseers of Poor, 9 Gratt. 141; Bell v. Snyder, 10 Gratt. 353; McDowell v. Crawford, 11 Gratt. 388; Noyes v. Humphreys, 11 Gratt. 651; Pryor v. Kuhn, 12 Gratt. 617,618, 619; Vaidenv. Com., 12 Gratt. 723. 726, 728: Wickham v. Lewis Martin & Co., 13 Gratt. 431; Gimmi v. Cullen, 20 Gratt. 451, 452; McClung v. Ervin, 22 Gratt. 528; Read v. Com.. 22Gralt. 929; Danville Bank v. Waddill, 31 Gratt. 474; Moses v. Old Dominion Iron and Nail Works Co., 81 Va. 23; Goodman v. R. & D. R. Co.. 81 Va. 582; Cluverius v. Com., 81 Va. 863, 864, 868; Moses v. Old Dominion Iron and Nail Works Co., 82 Va. 21, 25, 26, 27, 28, 29; Muse v. Stern, 82 Va. 35, 36,37, 38; Newlin v. Beard, 6 W. Va. 127; National Bank v. National Bank, 7 W. Va. 550; Miller v. Insurance Co., 12 W. Va. 126; Morgan v. Fleming, 24 W. Va. 191, 196. The rule laid down above as to when the appellate court will reverse the judgment of the lower court on a bill of exceptions certifying the evidence is known as the “old rule” in Virginia. Pollard’s Supp. § 3484 provides that the rule of decision in the appellate court where the evidence, and not the facts, are certified, “shall be as on a demurrer to the evidence by the appellant." See further, monographic note on "Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   JUDGE) COADTFE.

As to the general question, whether a Bill of exceptions properly lies to the opinion of a Court of law in granting or refusing a new trial upon the testimony, I have no doubt, as well on principle as on the uniform decisions and declarations of this Court, but that such an opinion may be reviewed by an appellate Court, on a Bill of exceptions, whenever the motion is founded on the allegation that the verdict is contrary to the law, arising on the facts appearing in evidence before the jury; and I incline to think that such opinion may in like manner be reviewed, where the application is made on the ground of the verdict being contrary to the weight of evidence; though, in this latter case, if the motion is overruled, there ought to be very strong grounds to induce an appellate Court to set aside such verdict, against the opinions of a Court and jury, who not only heard the witnesses depose, but saw the manner in which they gave their testimony.

As to the manner in which such bill of exceptions should be framed; whether, as in the case of Keys v. M’JTatridge, lately decided in this Court, it is most proper to state the facts that were proved; or, as in the case before us, to give a detailed statement of what each witness swore; there may be some 'doubt; but I think either may, according to circumstances, be proper, and that it might be unsafe to confine it to the one or the other mode; and, more especially, that it would be unsafe to confine it to the mode adopted in the former case.

In the first case, where the motion is made purely on the ground of a mistake of law arising upon the facts, concerning which there is no controversy, as in the case of Keys and M’Fatridge, where all the testimony was on the part of the plaintiff; a general statement, that such and. such facts were proved, is perhaps all that would be necessary; but where there is a contrariety of ^'evidence, or any inferences to be drawn by the jury, it might be unsafe to adhere to that course, especially if the motion should prevail, as thereby the province of the jury to infer facts, and to weigh and stamp on every part of the testimony its intrinsic value, might be invaded.

This doctrine will perhaps be well illustrated by an examination of the case before us.

I had at first thought this was a plain case of a mistake of the Court and jury as to the law arising on the evidence. I supposed there was no doubt but that a fiduciary possession was proved in the intestate of the plaintiff; and that, consequently, he could not recover on that possession : and had the Judge who heard the trial been of the same opinion, unless he had mistaken the law, he must have granted a new trial; and, on an exception taken on the other side, if he had confined himself merely to the statement that the fact so appeared in proof to the jury, and could not have been called on to detail the-evidence proving it, we must have affirmed his judgment; but, had the case been brought before us in the way it now is, we might have agreed with the jury and reversed that judgment.

From the evidence in this case, admitting it all to be credible, (which we probably ought, there being no allegation to the contrary,) and that there is no material contradiction in it, (as I also incline to think,) the jury may have believed, from all the circumstances, that, although there was a trust between old Mr. Bennett and his son in law Lark, of which the intestate of the appellee might at some tin e or other have received information, that yet he may have had an adverse possession of more than five years under a total ignorance of, and in opposition to, that trust; or they may have believed, and that from the testimony of a witness introduced by the appellant himself, (who deposed, in substance, that Bennett told Jones the intestate to take care of the slaves in controversy, as, after the death of Mrs. Lark, his mother in law, they might be of use to him and his family,) that Bennett the elder had confirmed the gift to the intestate of the ap-pellee, reserving simply a life estate *to his daughter Mrs. Lark, whose claim is not the ground work of this defence, (she having always acquiesced in the possession,) but which is asserted by the appellant as Executor of Bennett, and who, in that character, claims a right to hold possession. But if this Court would not think itself justified in setting aside a verdict in this case, corroborated as it is by the approbation o* the Court, (and on this ground alone, on a more minute view of the testimony than I had at first taken, I am not for interfering therewith, but for affirming the judgment,) it does not follow that the Court would, or ought to have given a different judgment, if a new trial has been granted, and, with that difference only, the case had appeared before us precisely as it now does.

In cases of new trials, resting, as they do on sound discretion, I am not for restricting the course that is to be pursued by the Courts in presenting, to the appellate jurisdiction, (as they must be presumed always desirous to do,) the very truth and justice of the case as it appears before them, or for occluding to the parties any course which may be necessary for that purpose; leaving it to the vigilance, wisdom, integrity and independence of the Courts to prevent, in this, as in all other cases, any improper use which may be made of, or advantage gained by the rules and course of proceeding. — No system of practice can be perfect and unsuscep-tible oí abuse; and 1 fear that, in this case, a restricted course will be most liable to perversion.

If I am right, however, that a Bill of exceptions will lie to a judgment granting or refusing a new trial on the ground that the verdict is contrary to the weight of evidence, (and I fear we would be going too far to say that, if a Court should grant a new trial where the evidence preponderates in favour of the verdict, or where the case mainly turned on the credit due to witnesses, arising, either from a conflici between their statements, or upon discrediting proofs, no bill of exceptions would lie,) I can’t perceive how such a case could be presented to the appellate tribunal without a detailed statement of the evidence. But, if we decide that such detailed statement, *in all cases, is improper, we in effect decide that no Bill of exceptions will lie in the case last supposed.

JUDGE) EOANE pronounced the Court’s opinion, as follows.

This is an action of detinue brought in the Superior Court by the appellee against the appellant. On the general issue, a Verdict was found for the plaintiff. A motion was immediately made for a new trial; but it was adjourned over until the next day, when the motion was overruled. The defendant excepted to the opinion of the Court, prayed that the evidence might be certified of record, and, that being done, appealed to this Court. It is not shewn that the evidence was taken down at the trial, nor that it was then taken down from the mouths of the witnesses: and yet the whole evidence given in, is stated, and not the facts merely as they appeared in evidence to the Judge. The Evidence, as it appears on the record, is conflicting and contradictory.

Although the Bill of Exceptions does not state on what ground the motion for a new trial was made, yet, having stated none other, and the evidence being con-trariant and contradictory as aforesaid, we are obliged to infer that that ground was, that the Verdict was contrary to evidence: and the question is, whether it is competent to a party to carry all the evidence io the appellate Court, by a bill of exceptions, and, on the ground of it, to reverse a judgment of the Court below refusing to grant a new trial.

It does not follow that a Judge believes every Witness who gives evidence before him; as he may well hesitate to do, from the manner of testifying, and other extraneous circumstances; nor can he do it where they conflict with one another. It is evident, therefore, that, in this case, the opinion of this Court might be founded upon the testimony of witnesses who were discredited both by the Jury and the Court below. This Court only sees the evidence on the record; and, on paper, the credit of every witness is the same, who is not positively impeached. This would be for this Court, not only to revise and reverse the opinion of the Court below, on a question, ’"'touching the weight of evidence, and the credit of the witnesses, but to do it in the dark, or, at least, with lights inferior to those possessed by that Court. That Court, while it can faithfully transmit to this, the actual words spoken by the witnesses, can give it no fac simile of the manner of testifying, the hesitation or partiality manifested on the trial, or the like. With respect to these important circumstances, as they relate to the weight of testimony and credibility of witnesses, this Court is entirely in the dark: — 'the advantages are exclusively confined to the Court of trial.

It is an important principle that the revising Court should have the same lights, and act upon the same data as the inferior Court. This is always so, where the case depends upon a question of law; for that question, being permanently spread upon the record in the trying Court, is carried up to all the revising tribunals. It is a further principle, equally important, that, where this advantage is wanting in the revising Court, the judgment of the Court below will preponderate. On this principle this Court acted, in the case of Chaney v. Saunders, 3 Munf. 51. On this principle, it is held, in England, that a new trial will be granted, after a trial at bar, rather than after trials at nisi prius; because the former is founded upon what appeared to the whole Court, whereas the latter are founded upon the opinion of a single Judge. —(1 Burr. 394.) On this principle it is also held, that, where there has been a view, the Court will not, except for some very special reason, grant a new trial; because the Jury may have been influenced by what they saw on the view, and which the Court did not see. (6 Bac. S68.) This last position is entirely analogous to the case before us, and is decisive of it. The Jury and the Court below saw that which this Court cannot see. They had, or may have had, the most cogent reasons for discrediting witnesses, on whose testimony, (it appearing only on paper,) this Court might found it’s judgment.

We are, therefore, of opinion, that the bill of exceptions, as now exhibited, was not properly taken, and, therefore, that it furnishes no just ground to reverse the judgment.

*Whether a party can, on overruling a motion for a new trial, on the alledged ground of the verdict being contrary to evidence, require the Judge to state in a bill of exceptions the facts as they appeared in evidence to him, and carry up the case to the appellate Court thereupon, is a different question. We are inclined to think it has been affirmatively settled, by the admissions of this Court, and the practice of the Country. In that case, the exception is not liable to the objection existing in the case before us. The appellate Court does not in that case depart from, or over rule the decision of the trying Court, as to the weight of testimony, or the credit due to any witness. It only acts upon his own certificate and acknowledgment of his opinion upon the subject. Such a bill of exceptions may be likened to the report of a nisi prius Judge in England; which, as to the facts, is conclusive with the Courts of Westminster Hall. It does not, like the bill before us, bring the whole matter again into controversy. It does not lengthen the record beyond all reason, by inserting, and that too after the witnesses have dispersed and departed, all the Evidence given in at the trial. It only states, briefly, the facts, as they appeared to the Judge, and are admitted by him .to have been proved; and, in consequence of such his admission, the appellate Court founds it’s decision upon the same facts as those which governed the Court below. There are also other circumstances favour-ing an appeal, or a bill of exceptions, of this last character. They result from the nature and organization of our Courts. The Members of the County Courts are perpetually changing, and those of the former District Courts changed at every term. If no appeal could lie from a decision on a new trial, and the same judges could not attend at the next term, or even on the next day, there could be no adjournment of the question; the decision must, therefore, be made off-hand, by which great injustice might ensue: — and if a decision, by not being promptly made, could not be made at all, (owing to a change in the identity of the Judges,) parties would often be driven into Courts of Equity to obtain a new trial; as has often been done, in *this Country, from the necessity of the case. In this view, too, less objection would result from giving a speedy, and even a hasty decision, on a motion for a new trial. If, from that cause, an error should intervene, the bill of exceptions having stated the facts as they were actually proved on the trial, the error could be regularly corrected in the appellate Court.

Although the ground of this reasoning fails, in part, as to the Superior Courts of law, by the permanent assignment of the same Judge to the respective Courts, it still holds as to the County Courts, and formerly held as to the District Courts. Eor this reason, and because we see none of the evils resulting, which exist in the case before us, we should be disposed to entertain a bill of exceptions of the description last mentioned.' But the objections now taken to the bill before us must prevail, and repel it from the consideration of the Court.

We are, consequently, of opinion, to affirm the Judgment. 
      
       Note. See ante, p. 18.
     