
    Foushee v. Lea.
    [April, 1785.]
    Equitable Relief — Against Judgments — Grounds.—A court of equity will occasionally relieve, where the common law gives no remedy; or judgment has been obtained by surprise, or inadvertence.
    Same — Same—Same—Case at Bar. — If the party has sent a subpoena in time to the sheriff of the county where the witness resides, he has used due diligence: And if the witness does not attend, and the party has not been, otherwise, in fault, the cause ought to be continued.
    New Trial — notion for — When Hade — Verdict Contrary to Evidence. — If the defendant’s counsel means to move for a new trial, because the finding of the jury is contrary to evidence, he is not bound to do it at the time the verdict is rendered, but may postpone it to another day of the term.
    Same — Same—Absence of Trial Justice — Relief.—And if one of the justices who tried the cause does not attend on the day of the motion, so that a quorum cannot be had to decide upon it, that will be ground for relief in a court of equity.
    Same — Place of New Trial — Assent of Parties. — If the chancellor refuses to dissolve the injunction, and parties consent that the new trial shall be had in a particular county, the chancellor, on the motion of either party, may direct the trial to be at a different place, without the assent of the other.
    Foushee brought case, in the county court of Henrico, against Lea, who resided in Philadelphia, for not accepting a lease, for one year, of a house in the city of Richmond. At the first trial of the cause, John Banks was examined as a witness for the defendant; but, the jury disagreeing, no verdict was rendered. Lea’s counsel issued subpoenas for his witnesses in due time before the next court; but, Banks being absent on a visit to Norfolk, the sheriff had not an opportunity of summoning him. When the cause was called, *Lea’s counsel moved for a continuance, on account of the non-attendance of Banks; and, by way of inducement, offered to admit the depositions of the witnesses for Foushee, instead of their viva voce testimony, upon the trial of the cause: But the court refused the continuance, and Foushee obtained a verdict and judgment. On the next day, Lea’s counsel moved for a new trial; but there being only four justices on the bench, one of whom had not sat in the cause, and therefore declined to give any opinion, the court refused to go into the question, and the motion fell.
    lyea then filed a bill, in the high court of chancery, stating the circumstances aforesaid ; denying that the contract had ever been perfected; and charging that the treaty was entirely off, without completion; and that Foushee afterwards offered to rent the house to Banks. Prayer for injunction, and general relief.
    The answer insisted that the contract was complete; and that the offer, to Banks, was after the complainant had refused to perform.
    Banks and others were examined with respect to the contract, as well as to prove the issuing of the subpoenas, the absence of Banks, the refusal of the continuance, and the failure of the motion for a new trial.
    Upon a motion to dissolve the injunction, the following order was made: “The court being of opinion that the injunction ought not to be dissolved; by consent of the parties by their counsel, a new trial is to be had between them in the county court of Henrico, and the verdict of the jury thereupon is to be certified to this court for their information. ”
    The venue was afterwards upon the motion of Lea’s counsel changed to the district court of Fredericksburg; then, on the motion of Foushee’s counsel, to the district court of King & Queen ; and subsequently on the motion of Idea’s counsel back again to Fredericksburg: but, by consent of the parties, none of the landlords or tenants of houses in that town were to be of the jury.
    *The cause was tried in Fredericks-burg without any further objection; and a verdict was found in favour of the defendant, the court ordering it to be certified to the chancellor, That strong testimony was offered on both sides, sufficient “to have established a verdict in a court of law in favour of either plaintiff or defendant.”
    In consequence of which, Foushee made affidavit, That he had a little before the trial discovered, that Goode was a material witness for him, but had not summoned him, because he had understood that he had received a fall from his horse, which would render him unable to attend: and that he had likewise discovered since the trial that Henry Banks was a material witness for him.
    Goode deposed, that upon going into the above mentioned house one day, he found Foushee there with a stranger, and asked him if he had got a tenant for it. That Foushee answered, that that gentleman had taken it; and was when finished to have it for a store. That the conversation was loud enough for the stranger to have heard it; but that he said nothing: and- that Foushee told him, at the time, that the stranger’s name was Lea.
    Henry Banks deposed, that before Lea left Richmond, he understood from JDeane that the former had rented the house.
    The court of chancery made the following decree : ‘ ‘The court approving the said verdict found before the district court, and rejecting a motion made last term and repeated in this, to direct another trial of the issue, doth adjudge, order and decree, that the injunction obtained by the plaintiff to stay the execution of the judgment recovered against him by the defendant in the county court of Henrico be perpetual;” and ordered that the appellant should pay all the costs, except those of the last trial in the county court. Foushee appealed to the court of appeals.
    Campbell for the appellant.
    The court of law refused the continuance upon the same evidence as to the attendance *of John Banks; and the court of chancery could not examine whether their judgment, in that respect, was right. The testimony of that witness, however, was unimportant, and could have had no operation had he been present, as the general evidence was in favour of the appellant : But were it otherwise, it would not help the appellee; for he ought to have moved for a new trial upon the day of the verdict, and if he neglected to do so, it was his own fault. The trial in Fredericks-burg was improper; for the consent was confined to Henrico, and the chancellor had no authority to alter it.
    Wickham and Lee, contra.
    The appellee was taken by surprize; for John Banks was a material witness, as he proves that Foushee offered to rent him the house after the time when it is pretended that the contract was perfected; and, as the efforts to obtain his attendance were defeated by events over which he had no controul, the continuance ought to have been granted. The circumstances prove that the contract was never completed, and that both parties had abandoned it. For Lea did nothing under it, and Foushee both offered to rent the house to Banks, and actually leased it to Graves. The appellee therefore was not only improperly ruled into a trial, but the verdict was contrary to the testimony produced; and it is probable that the county court would, upon both grounds, have granted a new trial, if the justices who sat in the cause, had all been upon the bench when the motion for it was made. Consequently, it was the duty of the chancellor to interpose; for the accidental change of the members of the court ought not to injure the appellee, as there was no unnecessary delay in making the motion, and many causes might have led to the postponement, such as the lateness of the day, the want of preparation on the part of counsel, and the obtaining further testi-mon3r to shew the steps taken to procure the attendance of Banks. Be that as it may, however, no exception to the jurisdiction of the court of chancery is taken in the answer *as the act of 1787 requires, and the new trial was con-seated to after the injunction was obtained : which circumstances put an end to all controversy upon that point. The -change of the venue was not improper. For although the consent was limited to the county of Henrico, yet as an impartial decision was'the object of the new trial, the chancellor might, in order to obtain that, direct the jury to be’ assembled from' any vicinage which justice required; especially as it was not objected to, but' finally concurred in, by the stipulation, that none of the landlords or tenants of houses in Fredericksburg should be of the pannel, that there might be nobias'in the minds of the jurors. The testimony of Goode' and Henry Banks is immaterial. For it does not appear that he heard the conversation spoken of by Goode; but, if he had, he was not bound to remark' upon it: and Banks relates the hearsay declaration of Deane, who, at that time, was not the' agent of Lea.
    Marshall in reply.
    Sufficient cause for setting aside the first verdict was not shewn; and therefore the chancellor ought not to have interfered. In Street v. Cock-ran, the cause was tried out of course in the absence of witnesses, and a heavy verdict given, yet a new trial was ‘ refused upon that point: And, in Hbomes v. Kuhn,' a material witness was absent; Und, although the defendant had inade great efforts ' to procure his attendance, the right of the chancellor to set aside the verdict was denied.' Those cases were' stronger than the present; for 'herd all the important testimony was before the county court, and that of John Banks was too slight to have varied the result. But due diligence was not used to procure his' attendance, as a ' subpoena might have 'been sent to Norfolk. Be that as it may; howevef, the county court had decided it upon the' same evidence that, was before the chancellor, and he could not review their judgment. The contract is proved, and the offers to Banks and Graves were not made until Lea had refused to perform, and then it was' done with a view to lighten loss, by ^charging him with the difference in the rents only; which proves that the merits are decidedly with Foushee; and that he never abandoned the contract. It was not necessary to plead to the jurisdiction of the court of chancery, there being no ground of equity stated in the bill; for the appel-lee ought to have moved for a new trial at the time of the verdict, as the change of magistrates might have been foreseen, and neither the lateness of the day, nor the want of preparation, is alleged in the bill, or proved in the cause. There was no consent to a new trial: for it was merely an arrangement to facilitate the execution of a measure which the chancellor had resolved to take. But the consent, whatever it was, extended to Henrico only; and the court could not change the terms without mutual agreement. Such agreement, however, was not obtained; for the change made was the act of the 'court, and not of Foushee, who was not bound to take a special exception, as the error appeared upon the record. The stipulation, with regard to the landlords and tenants of houses in Fredericksburg, was merely to guard against the effects of the order which the chancellor had previously made;-and therefore ■ it cannot be tortured into a consent either to the new trial, or to the change of the venue. As'the judges of the district court have certified that the testimony on both sides was equal, that of Goode and Henry Banks might have weight with the jury; and therefore an Opportunity of laying it before them should be afforded the appellant;
    Cur. adv. vult.
    
      
      Equitable Relief — Against Judgments — Grounds.— See the principal case cited in Terrell v. Dick, 1 Call 553, and distinguished in Hudson v. Kline, 9 Gratt. 385. See footnote to Byrne v. Edmonds, 23 Gratt. 200 ; Ross v. Pynes, 3 Call 568 ; and monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Chancery Court — New Trial — Certifying Verdict —As to certifying the verdict, when the chancery court grants a new trial, see the principal case cited in Wilson v. Rucker, 1 Call 518.
      In Miller v. Wills, 95 Va. 851, 28 S. E. Rep. 337, it is said ; "In Foushee v. Lea, 4 Call 279, the court of law, which tried the issue out of chancery, having certified to the chancellor ‘ that strong testimony was offered on both sides sufficient to have established a verdict in a court of law in favour of either plaintiff or defendant.’ this court held, upon an appeal, that ‘ the chancellor did right, therefore, in declaring himself satisfied, as the jury were the proper judges of the facts.’ See also, McRae v. Woods, 1 H. & M. 548, and Steptoe v. Flood, 31 Gratt. 342.”
    
   LYONS, Judge,

delivered the resolution of the court as follows:

The first objection taken ' to the decree was, that the court of chancery could not interfere, as the motion for a continuance had been overruled by the county court, and a verdict found, upon the merits, before a competent tribunal. ■

This makes it necessary to consider the power of a court of'equity to grant relief, where injustice has been unexpectedly done, by a judgment at law.

*The ordinary jurisdiction of the chancellor is confined to fraud, force and accident; but it is 'sometimes concurrent with the law, and occasionally affords relief, where the law gives no remedy; or judgment has been obtained from inadvertence or surprize. Heard v. Stomford, Cas. T. Talbl'174; Kent v.’Bridgman; Prec. Ch. 233. Not that it creates'a new'right in the former case, or exercises appellate jurisdiction in the latter: But, in the first, it merely gives efféct to' existing rights which the law would enforce, if its forms permitted ; and, in the second, it prevents the party, who has improperly acquired an unconscionable advantage at law; from making use of it.'

Apply these principles to the case before us.

It appears that John Banks was a material witness for the defendant, and that due diligence had been used to procure his at-tendahce, as the subpoena had been sent, in time, to the sheriff of the county where he resided, but the attempt to get him failed from his unexpected absence, which prevented the officer from serving it; and not from the fault of Lea, who lived in Philadelphia, and had not an opportunity of taking any other steps. In' this situation, the appellee’s counsel moved for a continuance of the cause, and offered reasonable terms to obtain it: But the motion was rejected, and very heavy damages assessed against him by the jury. This was plainly a surprize upon the appellant, arising from an accident, which had not been anticipated.

That, however, was not all. The counsel for the appellee, thinking the verdict was contrary to evidence, moved for a new trial, which would have afforded the court an opportunity of revising their opinion with respect to the continuance, but the motion failed from the absence of one of the justices, and ' not from any unusual, or improper, delay. For,although it was not made at the time of the verdict, 3ret that wás not material, as it was not foreseen that the members of the court would be changed, and the counsel might have had very just grounds for postponing the motion until the next day.

'x'Under this view of the cause, it is impossible to say, that the trial was fair; or that the verdict ought to have stood. For the case is much stronger than that of Kent v. Bridgman, where the defendant was relieved, because he had lost the cause by failing to prove a copy of the judgment on which he relied, although it did not appear, that any accident had occurred to prevent it.

The cases of Cockran v. Street, and Hoomes v. Kuhn, do not conflict with this opinion. For the first was so far from being a case of accident, that the court expressly said, that the evidence was too slight to establish the fact of the alleged surprize: And, in the second, the defendant had not only néglected to summon one witness entirely, and sent the subpoena, (by a servant instead of the sheriff,) to the other, so late, that there was not the least probability that he Could reach the court in time; but he made no motion for a continuance, and had other witnesses who either did or might have proved the same things.

The next objection taken to the decree was, that the venue was changed from Henrico to Fredericksburg, notwithstanding the parties had consented to a trial at the former place.

But the court thinks that objection not material. A fair and impartial trial was the object; and to effect that, the chancellor was as much bound, if circumstances required it, to change the venue, as if he had directed the place himself, and found it necessary, afterwards', to change it. For it would be absurd to suppose, that when he had ordered a new trial for the purposes of justice, he was to suffer it to proceed at a place where it-could not be obtained.

There is nothing to impeach the verdict at Fredericksburg. For the parties went, voluntarily, to'trial; and'the court has certified that the testimony, on both' sides, was equal. The chancellor did right, therefore, in declaring himself satisfied, as the jury were the proper judges of the facts.

*But it was said, that the affidavits of Goode and Henry Banks laid a sufficient foundation for another trial.

The court, however, is of a different opinion. For no application was made to continue the cause on account of the absence of Goode, and there is no proof when the testimony Of Banks was discovered, except the affidavit of the appellant. But independent of those circumstances, the testimony of both of them is immaterial. For, if (which does not appear) Lea had heard the conversation between Goode and Foushee, he was not bound to attend to it, as it -was not addressed to him: And Banks relates only the hearsay declaration of Deane, who, at that time, had no agency in the business.

Upon the whole,the court are satisfied with the decree ; and it is unanimous^ affirmed.  