
    Pleasants v. Clements.
    (Absent Coaltek, J.)
    February, 1831.
    New Trial — Order Refusing or Granting-Review by Appellate Court.- -As an appellate court will review an order of an Inferiour court overruling a motion for a new trial, and reverse the proceedings of new trial improperly refused, so it will review an order granting a new trial, and reverse proceedings if improperly granted.
    Same- — Erroneous Advice of Counsel,~ An affidavit of a party, that he failed to summon material witnesses at the trial, owing to advice of counsel that their testimony was not necessary, no ground to set aside verdict and grant new trial.
    Appellate Practice — New Trial Improperly Granted.— If appellate court reverses jndgment. on ground that new trial has been previously improperly granted, it-will examine the proceedings of the trial set aside, and if it find error in them reverse and correct them, otherwise affirm them.
    Action at Law — Evidence—Depositions Taken in Chancery Suit. — On the trial of an action at law, depositions taken in a suit in chancery between the same parties, are not proper evidence, unless the witnesses he dead, or otherwise not capable of attending the trial.
    Same — Same—Decree in Chancery Suit. — A suit in chancery and decree therein, can neither be pleaded in bar, nor given in evidence, in an action at law between the same parties, unless the very same matter of controversy was involved in both suits, and unless the court of chancery had competent jurisdiction to decide the matter.
    Same — Same—Same—Case at Bar. — Therefore, where P. filed bill in chancery against C. charging fraud practised by defendant m sale of a slave, and praying that the contract might be rescinded, and that C. might be in joined from taking measures to recover the purchase money of P. and the bill was dismissed on a hearing; and then P. brought an action at law against C. to recover damages for breach of warranty of the soundness of the slave: Held, the proceedings and decree in the suit in chancery could neither be pleaded by C. in bar of the action at law, nor was the record thereof admissible evidence on the trial of the action at law.
    This was an action on the case, brought in the hustings court of Lynchburg, by J. H. Pleasants against Eliza Clements, upon a parol warranty of the soundness of a slave sold by the defendant to the plaintiff.
    *There were two counts in the declaration. The first stated that the plaintiff bargained with the defendant to buy a male slave of her for 375 dollars, payable twelve months after the date of the sale, and that the defendant falsely and fraudulently warranting the said slave to be sound and in good health, sold him to the plaintiff for the price aforesaid; whereas, in truth, the slave was, at the time, and thenceforth always continued, incurably afflicted with scrofula; by means of which premises, the defendant falsely and fraudulently deceived the plaintiff in the sale of the slave aforesaid. The second count stated, that the plaintiff bargained with the defendant to buy the slave of her, and that she, by falsely and fraudulently warranting him to be sound,.induced the plaintiff to buy him of her; whereas, in truth, the slave was, at the time, and thenceforth always continued, incurably afflicted with scrofula; and so the defendant falsely and fraudulently deceived the plaintiff in the sale &c. The defendant pleaded not guilty,, and on that plea issue was joined.
    At the first trial of the issue, the defendant offered in evidence, the record of a. former suit brought bv the plaintiff against her, in the superiour court of chancery of Lynchburg, wherein, as she alleged, the very matter in controversy in this action, had been decided and concluded by the decree of the chancellor. The bill in chancery was exhibited by Pleasants before the purchase money of the slave fell due, and was verified by his oath: he set forth his contract with Mrs. Clements for the purchase of the slave, and that she, by her agent who made the sale to him, represented that the slave was sound and healthy, and that though he had been afflicted with the malady called the king’s evil, he was in-tirely restored to health; that he was induced by these representations to purchase the property, at the price of 375 dollars,, payable twelve months after the date of the sale, for which he gave his note negotiable and payable at the bank of Virginia at Lynchburg; that he took possession of the slave, but soon found he was incurably diseased' with scrofula, and unable to endure the lightest labour, so that *he became and must continue a charge upon him, instead of being at all serviceable; that Mrs. Clements was well apprised, at the time of the sale, of the unsoundness of the slave; and that he had proposed to her to cancel the contract, restore the property, and pay reasonable compensation for the time he had held it, but no answer had been returned to this proposition : and the bill prayed an injunction to restrain Mrs. Clements from transferring or negotiating the note which Pleas-ants had given her for the purchase money of the property, and from causing the note to be protested at bank for non-payment at its maturity; and an injunction also to restrain the bank from protesting it; and general relief. Mrs. Clements, in her answer, denied all the material allegations of the bill. The depositions of sundry witnesses were taken by both parties, ^nd filed (these were, of course, part of the record offered in evidence). The chancellor, on a hearing, dismissed the bill with costs. Upon this record being offered in evidence by the defendant at the trial of this action, Pleasants objected that it was inadmissible, and the court sustained the objection, and excluded the evidence; to which Mrs. Clements filed exceptions. The trial proceeded ; but as the jury could not agree in any verdict, the jury was by consent of parties discharged, and the cause continued it till the next term.
    When the cause was called at the next term, Mrs. Clements tendered a special plea in bar, as follows, viz. Actio non, “because the defendant says, that the matter in controversy in this suit has been fully heard and decided against the plaintiff, in a suit heretofore instituted and determined in the superiour court of chancery of Lynch-burg, a court of competent jurisdiction for the purpose, wherein the plaintiff in this action was plaintiff, and the defendant here was defendant, the decree in which suit in chancery was not appealed from, and remains in full force and unreversed; and this the defendant is ready to verify by the record and proceedings of the said suit in chancery &c. Wherefore &c. ” But the court would not allow the plea to be put in ; to which Mrs. Clements filed exceptions.
    '"’The cause was then tried upon the plea of not guilty. Mrs. Clements again offered the record of the suit in chancery in evidence, the court again excluded it, and she again excepted to the opinion. The jury found a verdict for the plaintiff, for 300 dollars damages, and judgment was entered accordingly.
    But the next day, Mrs. Clements filed an affidavit to the following effect: That H. I', and J. H. of Powhatan county, were, as she was informed and verily believed, two of the commissioners who divided her father’s estate, and with others had appraised the slave she had sold to Pleasants, the subject of this controversy; and she was informed by her mother, that this slave in the division and appraisement, was valued as a healthy one: that she was also informed and verily believed, that one J. B. of Powhatan, was well acquainted with the slave, and was an important witness for her: that those persons would have been summoned to attend as witnesses for her at the trial, but for the circumstances that her counsel advised her, that, in his opinion, it was unnecessary, as well because of the testimony of another witness already taken in the case, as because the matter in controversy had been already determined in the court of chancerj’, a court of competent jurisdiction, in which the question of fraud had been fairly tried and determined: that owing to this advice she had been surprised at the trial; and she verily believed, that if she could obtain a new trial, she would be able to prove, by the above persons and others, that the slave sold to Pleasants, had been, and was at the time of the sale, as healthy as any man of his age. Upon this affidavit, she moved the court to set aside the judgment entered the day before, and the verdict, and to order a new trial; and the court, upon the strength of the affidavit alone, did set aside the judgment and verdict, and order a new trial.
    The cause was accordingly tried again at a subsequent term; when the jury found for the defendant, and judgment was given for her.
    ^Pleasants appealed to the circuit court of Lynchburg, w'here the judgment was affirmed; and thence he appealed to this court.
    Johnson, for the appellant,
    insisted, 1st, That the hustings court erred in setting aside the verdict found for Pleasants on the second trial, and granting Clements a new trial, on her affidavit; for the ground presented by the affidavit, to found the motion for the new trial, was surprise produced by the opinion and advice of her own counsel, as to the competency and sufficiency of the record of the suit in chancery between the parties, as evidence to repel Pleasants’s claim in this action; but there could have been no such surprise, since that record had been offered as evidence at a former trial, and rejected; and, surely, the mistake of counsel could not afford good ground for setting aside the verdict. 2ndly, That supposing the new trial to have been improperly allowed, this court ought to reverse the proceedings back to the order setting aside the verdict, and the judgment upon it, and allowing the new trial, *and to leave the verdict and judgment thus improperly set aside, to stand. But, if the court would look farther tack, then, 3dty, That there was no error affecting the verdict and judgment rendered for Pleasants at the second trial. 1. The special plea in bar, presenting the proceedings and decree in the suit in chancery between the parties, as a defence to this action, was properly rejected by the court: it was bad. in form and substance; bad in form, because it neither made proferí of the record and decree pleaded in bar, nor concluded to the court; bad in substance, because neither the plea, nor the record of the suit pleaded in bar, shewed, with certainty, the ground of the chancellor’s decree, whether he dismissed Pleasants’s bill upon the merits, or (which was more probable) for want of jurisdiction, and because the suit in chancery did not involve the same matter or controversy involved in the action at law, since the object of Plcasants’s bill in chancery was to rescind the contract of *sale on the ground of fraud, and to injoin proceedings to recover the purchase money of the slave, whereas the object of this action was to recover damages for breach of the warranty of the soundness of the slave, to which he was entitled whether a fraud had been prac-tised upon him or not. Besides, the plea was not offered in good time: it was offered after an issue made up and one trial, and just before the cause was called for the second trial. 2. The record of the suit in chancery was, as the court held, inadmissible evidence upon the trial of the issue, for some of the reasons he had urged against the plea founded on it, namely, that the chancellor’s decree, for aught that appeared in the record, might have proceeded on the want of jurisdiction, not on the merits, and that the two suits did not involve the same matter of controversy; and for this additional reason, that the whole record, (depositions as well as pleadings and decree), was offered in evidence; but, certainly, the depositions in the suit in chancery, were not proper evidence on the trial of the action at law, unless it had been shewn that the witnesses were dead.
    Stanard, for the appellee,
    said that this court had examined the grounds of applications for new trials, in cases where the courts below had improperly refused to set aside verdicts and order new trials, and had reversed judgments for that cause; but there was no case in which the grounds on which a new trial had been granted by the court below, had been reviewed, and the judgment reversed because the new trial was allowed on insufficient grounds. The case at bar shewed the propriety of the distinction: a verdict had been found for the plaintiff upon one trial, and then on the new trial, which was so full and fair that neither party could find cause for exception, there was a verdict for the defendant.
    
      Supposing that Clements’s affidavit shewed no sufficient ground for granting the new trial, still if injustice had been done at the former trial, this court should for that cause, ^sustain the order allowing the new trial, and affirm the judgment; or, at least the court would look at the previous proceedings, and if it found error in them, would correct it by reversing the proceedings back to the error. And he insisted, that Clements’s special plea in bar ought to have been received. The objection that it was not offered in time (supposing the plea good) was repelled by the authority of Tomlin’s adm’r v. How’s adtn’r, Gilm. 1. As to the objection to the form of the plea, for not making pro-fert of the record, and concluding to the court; the want of profert was a mere defect in form; and this plea, though it did not conclude prout patet per recordum, in strict technical form, ■ concluded with a verification !‘by the record and proceedings of the said suit in chancery &c. wherefore &c.” In substance, the plea was a good and complete bar: for Pleasants’s bill in chancery charged a fraud practised upon him in the sale of the slave, and the action at law was case for a deceit of the vendor, and so the point in controversy was the same in both. The chancellor’s decree was general, and concluded the whole controversy. And the plea alleges that the court of chancery was a court of competent jurisdiction to hear and determine the question in controversy; and truly so alleges, since the ground of complaint in equity was fraud, and at law, deceit, in the sale. But, if the plea should have been rejected as demurrable for want of form or precision, or because it was not offered in good time, still Clements ought to have been permitted to use it as evidence in her defence before the jury. Used as evidence, it would not have had the effect of an estoppel; but it was a judicial proceeding between the same parties, bearing directly on the matter in issue, and ought to have been suffered to go to the jury, to be weighed by them. If the suits in chancery involved and determined the same matter of controversy, and the pleadings and decree were therefore proper evidence, it would be very difficult to maintain, that the depositions contained in the record were improper evidence. But the court excluded the whole record; the ^pleadings and the decree as well as the depositions, and even Pleasants’s bill, which contained his state of the case upon his oath, and was certainly good evidence against him in this action.
    
      
      New Trial - Order Refusing or Granting--Review by Appellate Court. — Whatever may be the practice in other States, it is well settled in this state, that the court of appeals may review the action of a circuit court in either granting or refusing a new trial m a common-law suit. Tompkins v. Stephens, 10 W. Va. 167, citing principal case; Briscoe v. Clarke, 1 Rand. 213, and Knox v. Garland, 2 Call 241. See also, foot-note to Knox v. Garland, 2 Call 242; monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
    
      
      Same-Erroneous Advice of Counsel. — See principal case cited in Ruffner v. Love, 24 W. Va. 185; foot-note to Law v. Law, 2 Gratt 366 (containing extract from Ruffner v. Love, 24 W. Va. 185); Shrewsbury v. Miller, 10 W. Va. 125.
    
    
      
      Appellate Practice — Two Trials in Lower Court.— The rule of the appellate court, where there haye been two trials of a case in the lower court, is to look only to the proceedings on the first trial, and If it discovers that the trial court erred insetting aside the verdict on that trial, to set aside and annul all the proceedings subsequent to said verdict, and enter judgment thereon. Muse v. Stern, 82 Va. 33; Jones v. Old Dominion Cotton Mills, 82 Va. 149; Tucker v. Sandridge, 85 Va. 557, 8 S. E. Rep. 650.
      In Johnson v. McClung, 26 W. Va. 661, it is said: “It is well settled, that, where a case is tried and a verdict is rendered, which is set aside by the court, and a new trial is granted, and on the second trial the verdict is for the other party, and judgment is rendered thereon, to which a writ of error is obtained, the appellate court will look to the proceedings on both trials, and if the court below erred in setting aside the first verdict, the appellate court without considering the subsequent proceedings in the case will reverse the judgment and enter final judgment on the first verdict. Pleasants v. Clements, 2 Leigh 474; Knox v. Garland, 2 Call 241; Briscoe v. Clarke, 1 Rand. 213; Tyler v. Taylor, 21 Gratt. 700.” To the same effect, the principal case was cited in Tyler v. Taylor, 21 Gratt. 702, and footnote.
      
      By statute (Pol. Suppl., § 3484), it is provided that where there have been two trials in the lower court, the appellate court shall look first to the evidence and proceedings on the first trial, and if it discovers that the court erred in setting aside the verdict on that trial it shall set aside and annul all proceedings subsequent to said verdict and enter judgment thereon.
      See further, monograph!* note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
   CABELL, J.

The first question which presents itself for consideration, is, Whether it is competent to this court to inquire into the propriety of the judgment of an infe-riour court granting a new trial, and in case it shall be of opinion that the new trial was improperly granted, to reverse the judgment, and render such judgment as the inferiour court ought to have rendered? That this court may inquire into the propriety of the judgment of an inferiour court refusing a new trial, and may affirm or reverse, according to its opinion of the propriety or impropriety of refusing the new trial, is settled by such a series of uniform decisions, as no longer to admit of question. It seems to me impossible to distinguish, in point of principle, the case where a new trial has been improperly granted, from the case where it has been improperly refused; and I consider it to have been settled by the cases of Knox v. Garland, 2 Call, 241, and Briscoe v. Clarke, 1 Rand. 213, that the power of this court extends alike to both cases.

Then, was the new trial improperly granted in this case? The court below, proceeded solely on the ground of the matter contained in the defendant’s affidavit. It appears that she was well acquainted with the facts necessary for her defence, and the persons by whom they could be proved: but she failed to summon some of these witnesses, or to use any means for procuring their attendance. She made no motion for a continuance, but went to trial voluntarily, the full confidence, inspired by the advice in of her counsel, that she had abundant testimony without that of the absent witnesses. She had the full benefit of all the testimony on which she thus relied, except that of the record of the suit in chancery, which the court had refused to allow on the former trial, and which she ought to have , expected would *be again refused. Such a blunder, even if it be the blunder of counsel, affords no just ground for a new trial; for we cannot, in such a case, distinguish the party from the counsel. The new trial, therefore, was not justified by the matter contained in the affidavit of the defendant, on which the court granted it.

But it was contended, that though the new trial may not be justified on the ground on which the court placed it, yet that the court committed other errors which prevented the defendant from having a fair trial, and that the new trial ought to be supported on that ground. The acts of the court complained of as errors of this description, are the refusal to allow the record of the suit in chancery to be given in evidence, and its refusal to allow it to be pleaded in bar of the action.

Was it erroneous to reject the record as evidence? The record contained, in addition to the pleadings and decree, many depositions of witnesses taken in relation to the matter in controversy. Now, although depositions regularly taken upon a bill and answer in chancery, may be used as evidence in a trial at law between the same parties, provided it be proved that the witnesses are dead, or by reason of sickness are unable to attend, or that they cannot be found, or are absent from the country, or are otherwise not amenable to the process of the court, Com. Dig. title Testmoigne. C. 4, Deposition, 1 Atk. 445, yet they can be used only under the circumstances just mentioned. It was, therefore, proper in the court to withhold from the jury, the record containing depositions of witnesses, without proof of the circumstances which would justify the use of the depositions; and the bill of exceptions, in this case, does not shew that any such proof was given. Even if the defendant was entitled to the use of the record as evidence, no other parts of it were proper for that purpose, but the decree and the jdeadings on which it was rendered. It was offered asa whole, depositions and all; and it was rightfully rejected on that ground, if on no other. But no part of this record *ought to have been received in evidence in this case, unless it were of such a character, that if specially pleaded it would have been a bar to the action. And this leads me too inquire, whether the court erred in rejecting the plea?

I will not inquire, whether the plea was tendered in proper time, or pleaded in proper form: admit it to be free from all objection in these respects; admit it to have fully stated all the important parts of the chan-cerjT record; would the matter of the plea have been a bar to the action? To make such a plea a bar to the action, it is necessary, that the decision relied on should be the decision of the very matter in controversy in this suit; and that the court making the decision, should be a court having competent jurisdiction to decide the matter in controversy. The matter in controversy in this suit, was a claim for damages for the breach of a warranty, and there could be no recovery without proof of such breach. The words in the declaration, “falsely and fraudulently” preceding the word “warranting,” were mere surplusage, and unnecessary to be proved. If, then, this had been the matter in controversy in the court of chancery, that court would have had no jurisdiction to decide it; and, of course, the plea would have been no bar to the action. But, in truth, the matter in controversy in the suit in chancery, was a different matter: it was a claim to vacate the contract intirely, on the ground of fraud, over which that court had jurisdiction. But the decision of that question against the plaintiff is no bar to his action for damages for a breach of the warranty ; for though the plaintiff was not entitled to vacate the contract on the ground of fraud, yet he would be entitled to recover damages for a breach of the warranty, even if that breach were unaccompanied by fraud. I conclude, therefore, that the matter of this plea would have been bad on general demurrer, and, consequently, that the court did not err in refusing to receive it.

I am of opinion, that the judgment of the circuit court ought to be reversed; that the judgment of the hustings court, setting aside the judgment and verdict rendered for *the appellant, a.nd granting the appellee a new trial, together with all the proceedings subsequent to that order, ought also to be reversed; and that the judgment, which was entered by the hustings court on the verdict for the appellant, ought to be reinstated and affirmed.

The other judges concurring, the judgment for the appellee was reversed, and the judgment for the appellant, which was set a'side by the hustings court, was reinstated and affirmed.  