
    Ambler v. Wyld.
    October Term, 1794.
    Equity Jurisdiction — New Trial. — If the parties in an action at Law are at liberty by the issue to go fully into the examination of evidence, and having done so, a verdict is found, after a fair trial, a Court of Chancery ought not to direct a new trial. Aliter, if part of the evidence was suppressed by the Court.
    Paper Money — Scale of Depreciation — Construction of Statute. — The fifth section of the Act for scaling debts, was not intended to let men loose from their contracts, but to allow a departure from the established scale in cases where it might be necessary to meet the real contract of the parties.
    Equity Jurisdiction — Relief against Judgment at Law. —The Court of one County may, on its Equity side, relieve against a judgment at Law, rendered in another County Court, by way of original j nris-diction. And though it cannot award a new trial at the bar of that other Court, yet it may direct an issue to be tried at its own bar. And if the relief be afforded without the trial of an issue, where that is proper, the High Court of Chancery may. upon an appeal, after reversal, retain the cause, and direct an issue to be tried.
    
      In September 1778, the appellant sold to the appellee, his houses and lots in York town, the price of which was to *"oe settled by the valuation of three persons, for that purpose, mutually chosen by the parties; one half of which was to be paid at the time of the valuation, and the other in a year afterwards.
    On the 18th of the same month, the referees reported, that the property in the situation, in which it then was, was worth ¿1000, and signed a certificate to that effect. This was transmitted to Mr. Ambler, who was not present when the valuation was made; but it appears that Mr. Cary, who acted for him, was.
    On the 20th of October following, the first payment was made, for which Mr. Ambler gave a receipt, as for so much current money in part payment for the above property; Wyld, at the same time agreeing, not to demand a conveyance until the balance was paid.
    In autumn 1779, the appellee by an agent, offered to pay the balance to the appellant in paper money, who declined receiving it, saying, he should see Wyld that afternoon.
    On the 10th of February 17S2, the appellant procured from the persons who had valued the above property, a certificate in the following words, viz: “Sometime in the year 1778, the underwritten were called upon by Mr. Thomas Wyld to value the houses and tenements in York town, then the property of Mr. J. Ambler, which he (as we were informed) had agreed to sell the said Wyld, at such a price as disinterested persons should determine the same were worth; agreeably thereto, the underwritten did valué the said houses and tenements to ,¿1000; and it being contrary to the laws of the land at that time in force, to make any difference between paper money and specie, we do further declare, that we did then, and do now think, the aforesaid houses and tenement were worth ¿1000 specie.’’ To which paper, the names of the valuers were signed.
    The appellant instituted an action at law against the appellee in the County Court oF Henrico, sometime in the year 1783. The declaration contained 3 counts; the first of which was up on an indebitatus assumpsit, for ¿600 lawful money of Virginia, due to the plaintiff on the 1st of October 1778, for certain lots and tenements in the town of York. The 2d count was upon a quantum valebat, for the same property. The 3d was for ¿600 like money, laid out and expended for the defendant at the time before mentioned. Plea, non-assumpsit, with leave to give special matter in evidence at the trial. Verdict was given for the plaintiff, and damages assessed to the amount of ¿374: 1: 7J¿. *The defendant moved for a new trial, the consideration of which, was postponed until the next day, when the motion was over-ruled, and judgment entered up according to the verdict. To the opinion of the court upon the motion, the defendant tendered a bill of exceptions, which was sealed, stating, that the jury had without the permission of the court, carried with them into their retirement the above certificate of the 10th of February 1782, which had been offered in evidence at the trial and rejected by the court, because the persons subscribing the same were present in court, and examined as witnesses, whose testimony did not vary from their said certificate. Upon which ground the motion for a new trial was made, but that the same was over-ruled by the court.
    From this judgment of the County Court, Wyld appealed to the General Court, where it was affirmed in 1789.
    In March 1791, the appellee filed a bill in the County Court of York, on the chancery side, stating the above facts, and in addition thereto, that at the trial in Henrico Court, he produced witnesses to invalidate the testimony of the witnesses produced by the appellant, and to prove that the valuers had invariably acknowledged, that they made the valuation in current money and had never thought of specie at that time; but the court refused to permit those witnesses to be examined; that the jury retired, taking with them the certificate of the 10th of February 1782, but without any evidence to prove the tenor of the valuation made in September 1778, the .production of which was required by his. counsel at the trial, but denied by the appellant’s counsel to be in existence. The bill prayed to be relieved against the judgment of the General Court, and to be restored to the amount thereof, which had been paid to the appellant.
    The answer insists, that the certificate of the 10th of February was not a new valuation, but an explanation of that formerly made. That this certificate was obtained1 for the purpose of shewing what had been the real valuation made of the property, by the persons appointed to fix its price, in order to entitle the defendant, to claim the benefit of the fifth clause of the law, fixing the rate of depreciation, which authorized a departure from the general scale established by that act, where the justice of the case required it. That the trial was fair, and the testimony of the three valuers explained to the jury, the estimate they had made of the property in 1778. That the whole question of law and equity was fully before the jury, and having . *been finally decided upon by them, and their verdict approved by the court, the defendant insists that no other tribunal ought to interpose. He admitted that the valuation was not made in specie, but the valuers thought it worth ¿1000 in specie, and rated the current money at par with specie. He also admits, that the jury by mistake took the certificate with them, but asserts that the whole testimony went to a valuation in 1778, and so he conceives did the certificate.
    This answer being replied to, sundry depositions were taken, some of them proving, that the valuers had declared, they made their estimate in current money without once thinking of specie. This is acknowledged by themselves in their depositions, in which they state, that they knew of no depreciation, or difference between, paper money and specie at the time they made the valuation.
    
      One witness deposed, that he heard one of the valuers declare,- that when he signed the certificate of the 10th of February 1782, his intention was, that Wyld should make the second paj'ment of ¿500 equal to the first, which according to the scale of depreciation, would have been ¿100 specie, and that Ambler was entitled to no more. That he heard another of the valuers declare, that he did not believe the property would sell for a ¿1000 in specie, and that the certificate of 1782 was wrong if it mentioned specie.
    Several witnesses deposed that the houses when sold -were untenantable, (having been used as barracks,) and were in a very ruinous condition. That after Wyld had repaired them, they were offered at public sale for ¿500, and that no person would purchase them.
    One witness deposed, that at the trial in Henrico Court, the valuers were examined, and declared, that they did .conceive the property worth ¿1000 good money.
    Another witness deposed, that he and two others attended as witnesses for Wyld at the trial in Henrico Court, but their examination was refused by the court, as it would invalidate the testimony of Ambler’s witnesses. This witness says little else in his deposition, except, that he had heard one of the valuers declare, that the houses were not valued in specie; that they would not have dared to mention specie, as paper money was the legal circulating medium.
    The County Court of York, decreed the appellant to pay to the appellee, ¿395: 11: 7%, with interest thereon from the 10th of June 1789, till payment, and the costs. From this ^decree, Ambler appealed to the High Court of Chancery, where the following opinion and decree was given, viz: “that if the appellee were injured by the verdict of the jury, and judgment of the County Court of Henrico, stated in his bill, the only mode by which he could regularly obtain redress, was a new trial of the issue between the parties in the action at common law, and consequently, that the decree of the County Court of York, which seems to have thought the principal money recovered by that decree, so much more than the appellant ought to have received from the appellee, is erroneous; and therefore this court doth reverse the said decree. But this court supposeth, that if certain facts now appearing by the testimony in this cause had been known to the jury who tried the issue, or to the court who rejected the motion for a new trial, either the former might not have found such a verdict, or the other, if they had found it, might have awarded a new trial: and is of opinion, that, although the County Court of York perhaps had no power to award such new trial, this court retaining the cause may now proceed in it, as if it had been originally commenced here; and therefore this court doth direct the said issue to be tried again before the said County Court of Henrico, and the verdict thereupon to be certified to this court. And the appellee here in court doth consent, (without which consent, the new trial would not have been awarded,) that if the damages which shall be assessed upon such trial, exceed the damages assessed on the former trial, which may be the event, this court may decree him to pay the excess, and award execution against him for the same.”
    From this decree Ambler appealed.
    
      
      I Paper Money — Scale of Depreciation — Construction of Statute. — The principal case is cited with approval in Dearing v. Rucker, 18 Gratt. 466; Meredith v. Salmon, 21 Gratt. 775; Bierne v. Brown, 10 W. Va. 761; Gilkeson v. Smith, 15 W. Va. 60.
    
    
      
      Equity Jurisdiction — Relief against Judgment at Law. — The principal case is cited with approval in Hord v. Dishman, 5 Call 293, but distinguished in Terrell v. Dick, 1 Call 550, 551, 553; Hudson v. Kline, 9 Gratt. 385. See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518, and monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425. The principal case is citedin Henry v. Davis, 13 W. Va. 257. See Ambler v. Wyld, Wythe 235.
      Chancery Practice — Reversal of Decree. — The principal case is cited in Hadfield v. Jameson, 2 Muni. 60, as authority for the proposition that the chancellor, after reversing the decree of an inferior court, has a right to retain the cause, and thereafter proceed therein as if it were an original suit.
    
   The PRESIDENT

delivered the opinion of the court.

Neither of the parties appear to have been dissatisfied with the valuation of the property made in 1778, nor is it disputed, but that this was a paper money contract, and so understood by the parties; for besides the other proofs taken notice of at the bar, it appears that on the 20th of October, as soon probably as the parties met together after the valuation, Mr. Ambler received ¿500 the first installment, without objection, as according with the principles of the valuation then recently made. In autumn 1779 when the other payment became due, the. depreciation was so visibly great, as to make a more serious impression upon parties to former contracts; and tho’ no rule was then established, by which to graduate the sale of depreciation, every person was ^struck with the injury which would be sustained by a payment according to the nominal amount. Mr. Ambler therefore, might well think himself justifiable in evading the receipt of the ¿500 nominal money, which Mr. Wyld then offered to pay him.

This was not a legal tender by Wyld, nor could it be relied upon as such ; and tho’ the General Court may (as it is said) have adopted some rule as to its effect under a branch of the 5th_section of the act of 1781, yet neither does»t'hat apply here, since the subject was submitted to a jury who were to judge for themselves.

Here the matter rested until the 10th of February 1781, when the act for scaling paper money contracts had passed, fixing a general rule for adjusting those contract according to the rate of depreciation at the time they were made, but allowing a departure from that rule in particular cases, so as to meet the ideas of the parties at the time of the contract. Mr. Ambler supposed that an enquir3r into the relative value between paper and specie, as understood by the valuers at the time they made their estimate, was proper and necessary, in order to furnish an equitable .rule for adjusting this contract. His application therefore for this explanation, was by no means inconsistent with the fair character which that gentleman has always supported.

The paper of the 10th of February was not a new valuation, but an explanation of the former. As such indeed it was somewhat ofacular, and the court would perhaps find it difficult to develops its meaning, if it were necessary to do so. However, Mr. Ambler supposed that it entitled him to claim ¿500 specie, and he demanded that sum of Mr. Wyld, who on the other hand conceived, that this nominal sum was to be reduced b3r the legal scale of September 1778, which would bring it to ¿100 only. To settle this great difference in opinion, the parties go into the County Court of Henrico. f;

It was truly observed at the bar, that the issue in that suit left the matter of controversy open to a full and fair enquiry on the merits, and if on the trial, all the testimony offered by the parties had been admitted, and after hearing it the jury had decided as they did, no good reason could have been urged for a new trial. But this was not the case; evidence was freely admitted on one side, and without a colour of reason was rejected on the other. The trial then was not fair and equal, nor such as ought to conclude the parties. And since the injured party did not, and now cannot obtain relief in a court of law, it can *'only be afforded by a Court of Equity, and may properly be so, as innumerable precedents will prove.

The County Court of York had original jurisdiction in equity, not to award a new trial in Henrico Court, but to direct an issue to the same effect to be tried at its own bar. But instead of doing this, that court by some rule of calculation, the principles of which are concealed from our view, make up an account, and decree Mr. Ambler to refund ^395: 11: 7J^ and costs. This was unquestionably erroneous, and was properly reversed.

Whether the Chancellor could assume original jurisdiction on this appeal, if York Court had it not, is a point which need not be decided, since this was not the case. He certainly had upon the reversal, a right to retain the cause, and might direct the issue to be tried at his own, or at any other bar.

It was pressed by the appellant’s counsel, that if a new trial were directed, a special direction should accompany it, pointing the jury’s inquiry to the value of the property at large, independent of the valuation fixed upon it by the persons who had made the estimate.

This would he highly improper. It was not the intention of the legislature to let men loose from their contracts, but • to allow a departure from the established scale in cases where it was necessary, in order to meet the real contract of the parties.

The counsel need not be alarmed about objections to the form of proceeding, since being an issue out of chancery, and to be certified there, all forms in the proceedings at law will be out of the question.

Decree affirmed.  