
    Ross v. Pynes.
    [Wednesday, December 8th, 1790.]
    Chancery Practice — New Trial- Certificate of Judge against Verdict. — A Court of Equity will not grant a new trial, merely because the Judges certify , that the weight of the evidence was against the verdict.
    Pynes brought an action against Ross, for slandering his title to some slaves; and upon the trial of the cause, obtained a verdict and judgment for 5001. damages. The Court of Chancery granted an injunction, and awarded a new trial, before the District Court, with leave to the plaintiff to amend his declaration. On the second trial, there was a demurrer to the defendant’s evidence by the plaintiff, and the jury found a verdict for 10001. Vid. Wythe’s Rep. 71. The District Court gave no judgment on the demurrer; but, certified “that the weight of testimony on the trial of the issue, was. on the part of Ross, and therefore, that the verdict was not satisfactory to the Court.’’ The Court of Chancery, upon the return of the verdict, being of opinion, that as the loss in the sale of the slaves was attributable to Ross, he ought, although as he was believed to have designed no injury, to make reparation; and, as the measure of that reparation, observed in the first verdict, had been more than approved by the second, dismissed the bill with costs. From which decree, Ross appealed to this Court.
    This cause was argued by Baker and Marshall, for the appellant, and by Taylor, for the appellee.
    *l?or the appellant, it was insisted: That the original verdict having been notoriously obtained on an ex-parte hearing, which the defendant at law could not have prevented, as he could not have had notice of the illness of his only material witness, the cause came properly into Chancery for relief against that verdict. Being thus properly in a Court of Chancery, the decree which was made on the hearing, might, perhaps, have been final, and the cause returned to a Court of Daw, for a new trial and 'judgment at law; in which case, the Court of Common Daw could have controlled the verdict, or it might direct, as it has directed, the verdict to be ' certified to the Court of Chancery in order to enable the Chancellor to give a final decree. When the verdict is to be returned to that Court, it has all the qualities of an issue directed out of Chancery, and its object is to inform the conscience of the Judge on some fact about which he doubts, or to ascertain damages which himself cannot ascertain.
    It is a settled principle, that the opinion of the Court must, in some degree, concur with that of the jury, in order to give the conscience of the Chancellor the satisfaction he requires. 2 Eq. Ca. Abr. [736-737].
    This rule is founded .on sound reason and policy. The trial by jury, which under its present modification we so justly prize, would become dangerous, and might possibly destroy itself, if the superintendence and reasonable control of Judges was entirely removed. Juries might sometimes be led by the most unlimited prejudices- into such extravagant excesses, as would render it doubtful, whether the institution should be considered as a blessing or a curse. The wisdom of the law, therefore, to preserve alt the excellence of a trial by twelve honest and impartial men, without the ills which would otherwise attend it, has subjected their verdict to the opinion of Judges selected for *that purpose. This controlling power tempers the excesses and checks the mistakes, which juries may sometimes commit.
    It is as necessary that this controlling power should exist over issues proceeding from a Court of Chancery, as over those originating in a Court of Daw. Was it not to exist, it would be as proper to try the fact in the usual manner, in which an inquest of office is taken, as in a Court of Daw. It would seem to be treating the law Judges indecently to send a fact to their bar for trial, to oblige them to set during the trial, and yet to leave nothing to their opinion.
    So long as the verdict of a jury on an issue directed out of Chancery may be as contrary • to evidence, as the verdict of a jury on .an issue made up in a Court of Daw, the opinion of the Judge who sits on the trial must be as important, and ought to be as operative in the one case as in the other. In this case, the demurrer does not derogate from the importance of the opinion certified by the Judges at law, because it does not contain the testimony offered on the part of the appellant.
    Unquestionably, then, the opinion of the Court, if so expressed as to be decisive against the verdict, ought to procure a new trial.
    The words of the certificate are: “Ordered, that it be certified to the High Court of Chancery, as the opinion of the Judges of this Court, that the weight of testimony on the trial of this issue was on the part of the defendant; and, therefore, that the verdict was not satisfactory to the Court.”
    No form is prescribed to be used by the Judges of law who certify their opinion to the Chancellor. It is only necessary, that their opinion should be plainly and intelligibly expressed.
    *Had- this been a case finally determinable at law, the Judges, if entirely dissatisfied with the verdict, could have granted a new trial. Not having the power to grant a new trial, they can only certify their opinion to that Court which possesses the power; and, if their opinion is to have any weight, the Judges to whom it is certified ought to act upon it, as they would have acted, had the power of granting a new trial been in them. It can scarcely be doubted, but that the Judges who gave the certificate in this case would have granted a new trial, had it been in their power; and, if so, the Chancellor ought not to have been satisfied with the verdict.
    It was also contended, that the testimony did not support the issue, and that the letter contained no slander, but rather the reverse, as it evidenced the conviction Mr. Ross felt of the goodness of the title, and might be a necessary caution to his agent, not to be deterred from purchasing, by any report he might hear on that subject.
    It was also contended, that the demurrer ought to have been decided at common law.
    Por the appellee,- it was insisted :
    That the demurrer on the part of Mr. Ross was improper, as in this case the whole subject ought to have been adjudged of by the jury; since it was not the object of the Chancellor, when he directed a new trial, to enquire whether the letter written by the appellant was actionable or not. But, be this as it may, a demurrer to evidence admits the utmost force which can be given to that evidence; and, certainly, the letter of Mr. Ross might be construed into a slander on the title, since it was actually so considered by those who saw it, and produced doubts concerning the title, which otherwise would have had no existence.
    The action being maintainable, and ail injury positively proved, the only question for the jury *was, the amount of the damages. This depended on circumstances fully and properly cognizable by a jury; and, in such case, a Court should not lightly grant a new trial. [Wilford v. Berkley,] 1 Burr. 609.
    Here have been two verdicts : If. the first trial was even by surprise, the second was not; the parties were fully prepared, and had a fair hearing. The witness, whose absence produced the injunction, was present at the last trial, and the damages are doubled. This would- seem to do away any objection to the first verdict, and then we have two unexceptionable verdicts in favor of Pynes. Under such circumstances, a new trial ought not to be granted on such a certificate as has been given. The verdict is not said to be against evidence, but that the weight of testimony was in favor of Ross. Jurors weigh testimony, especially in actions which sound merely in damages; but it does not follow, that a second new trial should be granted. Here was testimony on both sides; and, in the opinion of the Judges, the scale might have preponderated but a very little in favor of Ross. On this account, the verdict was not satisfactory to them: But if, in an action sounding merely in damages, the amount of which can be measured by no exact standard, and on which all men will think somewhat differently, no verdict can stand which is not precisely satisfactory to the Court, juries become totally useless, and had better at once be dispensed with. It is transferring, from the jury to the Court, the power of assessing damages: For, if a Court will perpetually grant new trials, until a completely satisfactory verdict is obtained, the effect is the same, as if the Court, without the intervention of a jury, should decide the cause, and assess the damages.
    Mr. Taylor also contended,
    that, instead of dismissing the bill, the Chancellor ought to have ordered Ross to pay the amount of the last verdict.
    
      
       Chancery Practice — New Trial — Certificate of Judge against Verdict — The general rule is, that if the judge of the court of law, before whom an issue directed by the chancellor is tried, certifies the verdict to be against evidence, the chancellor ought not to be satisfied with it, but should direct a new trial of the issue. Southall v. M’Keand. 1 Wash. 336; Pleasants v. Ross, 1 Wash. 166, 1 Am. Dec. 449. This general rule is approved in dissenting opinion of Judge Bbockenbrotjgh in Grigsby v. Weaver, 6 Leigh 210, in which he distinguishes the principal case, and M’Rae v. Woods, 1 Hen. & M. 548, on the ground that in those cases there were two concurring verdicts, and therefore, the certificate of the judges, against the verdicts, were not allowed to prevail over them. He says; “No case has been produced, in which, after a single trial, the certificate of the judge against the verdict, has been entirely disregarded.”
      Same — Same — Same —Two Concurring Verdicts.— But it seems that, where there are two verdicts of the jury the same way, on an issue directed by the chancellor to be tried at common law, he ought to he satisfied with the finding, notwithstanding both verdicts were in opposition to the opinions of the judges before whom the issues were tried. In support of this proposition, see the principal case cited with approval in Henry v. Davis, 7 W. Va. 719; Grigsby v. Weaver, 5 Leigh 205; M’Rae v. Woods, 1 Hen. & M. 552. See the principal case cited in Martin v. Lindsay, 1 Leigh 506; Wilson v. Rucker, 1 Call 518. The principal case is a sequel to Ross v. Pynes, Wythe 69.
      injunction — Against Judgment — Plain Remedy at Law —Principal Case Distinguished. — In Hudson v. Kline, 9 Gratt. 885, the court, after laying down the rule, that a defendant in an action at law is not entitled to enjoin the judgment, on the ground of an accident, preventing him from making his defence there, when he has a plain remedy at law. said: "In regard to the cases cited by the counsel for the appellant in this branch of the case, viz.: Poushee v. Lea, 4 Call 279; Hord v. Dishman, 5 Call 279; Boss v. Pynes, 3 Call 490; Ambler v. Wyld, 2 Wash. 86; Knifong v. Hendricks, 2 Gratt. 212, it is sufficient to say that the parties who complained of the judgments at law in those cases, would have been entirely without remedy but for the interposition of a court of equity." See the principal case cited in this connection in Hord v. Dishman, 5 Call 293.
      Chancery Court — Tort—Excessive Verdict — Passion of Jury. — In Anderson v. Fox, 2 Hen. & M. 263, it is said: “But as to a court of equity, the case of Ross v. Pynes, 3 Call 568, informs us, that, although, in matters of tort, a jury is not bound to an exact calculation, yet, where a verdict is owing to a sudden passion in the jury, it ought not to bind; but it is the duty of the chancellor, in such case, to moderate the verdict. In that case, this temper in the jury was merely inferred from the enormity of the second verdict compared with the first, and confronted by the judges’ certificate, that the verdict was against evidence. In this case, this temper is admitted by the jurors themselves, and is further manifested by a reference to the data just mentioned.”
    
   *The President,

who delivered the opinion of the Court, said, it is certainly proper that the Judges, before whom the cause was tried, should certify their opinion of the verdict. The only question is, whether, on such a certificate as this, the Court ought to grant a new trial. By one party it is contended, that juries ought not to become mere cyphers; and on the other, that it would be extremely inconvenient to give the Court no control over their verdict. This is true; but, if the Court may continue to grant new trials till the verdict conforms to its opinion, juries are useless. The Court is therefore, of opinion, that, on such a certificate as this, a new trial should not be granted.

With respect to the demurrer, the Court thinks the principle laid down in the decree of the Chancellor a just one. For a real injury, compensation ought to be made.

With respect to the damages, the evidence does not show the amount; but, this being a tort, the jury was not bound by exact calculation. The increase of damages in the second verdict might be produced by sudden passion, which in this case it was proper for the Chancellor to moderate, and to take that sum which two juries had affirmed.

, The decree was affirmed.  