
    Lewisburg.
    Harnsbarger’s adm'r v. Kinney. Kinney v. Harnsbarger’s adm'r.
    
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    l.In debt on a bond, on the plea of usury, the defendant offered evidence for the purpose of proving that the consideration of the bond was seven other bonds which were before the jury, the amount of which was less than the first mentioned bond ; and moved the Court to instruct the jury, that if they were satisfied that the amount of the seven bonds was less than the amount of the first mentioned bond by 10 or 12 per cent., that the defendant had made out a prima facie case of usury ; and that the onus was then on the plaintiff to prove a further consideration to the amount of said first bond; and if they shall believe that he had failed to furnish such proof, they must find for the defendant. The Court refused to give the instruction; and remarked to the jury “ that the party who pleads usury must prove it.” Held : There was no error in refusing the instruction, or in the instruction given.
    2. The answer in chancery of a witness was filed among the papers in a cause, but was not read to the jury. The counsel for the plaintiff in the concluding argument before the jury, refers to the answer for the purpose of impeaching the witness. The counsel for defendant objects to this as a surprise; and it is agreed that he shall be allowed to reply on this point. After the plaintiff’s counsel has concluded, defendant’s counsel replies; and the witness is introduced to explain his answer. Held : This is not a surprise for which a new trial should be granted.
    3. Upon a motion for a new trial on the ground that the verdict is contrary to the evidence, the Court expressing the opinion that the verdict was justified by the evidence, overrules the motion; and the defendant takes a bill of exceptions, which does not set out the facts, but the testimony ; and this is uncertain and vague in its character, the weight of which, and what facts could be deduced therefrom, depending entirely upon the credit given to the witnesses. Held : It is not competent for the appellate Court to review the judgment of the Court which tried the cause, deciding that the verdict was not contrary to the evidence.
    4. A verdict which is in all respects fair, and in the judgment of the Court which tried the cause, in conformity with the evidence, will not be set aside upon the evidence of a few of the jurors, that they had been induced to agree to the verdict under a misapprehension of an instruction of the Court: And this especially, where, under the circumstances, there may be room to question its accuracy.
    5. If there is not sufficient grounds for setting aside a verdict generally, it is error to set it aside, to enable the defendant to withdraw his pleas and confess a judgment, with a view to resort to a Court of equity for relief.
    This was an action of debt upon a bond brought in August 1843, in the Circuit court of Augusta county, by Samuel Harnsbarger, as administrator of Robert Harnsbarger, deceased, against Moses M’Cue, John C. Sowers and Nicholas C. Kinney. The defendants appeared and put in the plea of payment, on which there was issue; but before the trial came on, M'Cue died, and the suit abated as to him. The surviving defendants afterwards filed the plea of usury; and there were three trials of the cause, on which the jury could not agree and were discharged. Before the fourth trial came on, Sowers died, and the suit abated as to him.
    On the fourth and last trial of the cause, the plaintiff introduced in evidence a bond executed by the three defendants to Robert Harnsbarger, bearing date the 10th day of June 1826, for 3850 dollars, payable on demand, with interest from the 30th of April preceding the date. On this bond there were credits for interest, and also a credit dated March 15th, 1828, for 2520 dollars, being the purchase money of a tract of land purchased from M’Cue, and conveyed by M’Cue to John Hamilton. The only question on the plea of payment seems to have been, whether this credit should not have been 3000 dollars.
    The ground of usury set up was, that the bond sued on was given in lieu of another for the same amount, bearing date the 30th of April 1821, executed by Moses M’Cue and John H. Hyde to Addison Hyde, and by him assigned to Robert Harnsbarger, by assignment on the back thereof, of the same date; and that this bond was given for a usurious consideration. To prove the usury, Addison Hyde was introduced as a witness. He stated that M’Cue had repeatedly applied to him for aid by the use of his name or otherwise, in negotiating a loan of Robert Harnsbarger; that witness went with M’Cue to Harnsbarger’s; and that he there, in the presence of M’Cue, assigned the bond of the 30th of April 1821, to Harnsbarger. That at the same time and place, Harnsbarger in consideration of said bond, assigned seven other bonds on other persons. These bonds were before the jury. Some of them were assigned by Harnsbarger to Hyde, and by Hyde to M’Cue, and others were assigned directly by Harnsbarger to M’Cue: and all of these assignments boro date the 30th of April 1821. There was also a bond of the same date executed by M’Cue to Harnsbarger, payable on demand, for 11 dollars 34 cents. And the defendant insisted that the amount of these bonds on the 30th of April 1821, fell short of the amount of the bond assigned by Hyde to Harnsbarger, between ten and twelve per cent.
    The witness stated further, that he had no recollection of any other bonds having been passed, or any money having been paid by Harnsbarger to M’Cue, for said bond of April 30th, 1821; nor did he know or recollect whether these bonds constituted the whole consideration given by Harnsbarger for said bond. Nor could he undertake to state from any knowledge or recollection he had of the transaction, whether or not Harnsbarger certainly knew that the bond of April 30th, 1821, was an accommodation bond, made for the purpose of raising money by a sale of it at less than its nominal value: or if he did, whether in fact he did purchase it for less than its nominal value. Witness never gave any value for the bond aforesaid, and never was the bona fide owner of it.
    
      Another witness for the defendant stated, that Harnsbarger remarked to him, that M’Cue had done well by him; that he had given him a good per cent, at the start; and that if he continued to pay him the legal interest promptly, he would not disturb him as long as he lived.
    Only so much of the evidence of these witnesses is given as is necessary to shew the grounds of the defence on the plea of usury; and the pertinency of the instructions asked for by the defendant.
    After the evidence had been introduced, the defendant by his counsel moved the Court to give the two following instructions to the jury: 1st. That if they are satisfied from the evidence that the bond upon which this'suit is brought, was given in lieu of another bond for a like amount, executed by Moses M’Cue and John H. Hyde as his security, bearing date the 30th of April 1821, payable to Addison Hyde, and by him assigned to the plaintiff’s intestate alone, in which said Addison Hyde had no interest whatever; and that the fact that he had no interest was well known to the plaintiff’s intestate at the time: And if the jury should also be satisfied from the evidence, that the consideration of the bond of the 30th April 1821, was bonds on other persons, assigned by the plaintiff’s intestate to .said M’Cue and said Addison Hyde; and that the bonds so assigned were not equal in amount to said bond of the 30th of April 1821, by between ten and twelve per cent., then it was a sale of bonds at a premium, on the part of the plaintiff’s intestate, and the jury should find for the plaintiff on the plea of usury.
    2d. That if the jury were satisfied from the evidence, that the bonds assigned by the plaintiff’s intestate, and now produced by the defendant, falls short of the amount of said bond of April 30th, 1821, between ten and twelve per cent., then that the defendant has made out a prima facie case of defence, and that the burden is thereby thrown upon the plaintiff to prove . , that other bonds were assigned, or money or other vain-able thing passed from the plaintiff’s intestate to said ^ M’Cue, making up the full amount of said bond April 30th, 1821; and if the jury shall believe from the evidence, that the plaintiff has not furnished such proof, they must find for the defendant.
    The first of these instructions the Court gave, but refused to give the second; and remarked to the jury, “ that the party who pleads usury must prove it.” To which opinion of the Court refusing the said instruction as asked for, and giving the instruction inferrible from, and implied in, the remark of the Court, the defendant excepted.
    There was a verdict for the plaintiff for the amount of the bond, subject to a credit for the payments endorsed thereon; and then the defendant moved the Court for a new trial, on the grounds that the verdict was contrary to the evidence; and that the defendant had been surprised on the trial by the counsel for the plaintiff who concluded the argument, having in the course of his concluding argument, introduced for the first time as evidence to the jury, a joint answer of Moses M’Cue and Addison Hyde, and relied upon it to impeach the testimony of said Hyde, without having laid the foundation in the cross-examination, by directing the attention of the witness to the said answer, and thereby afforded him an opportunity for explanation. The said answer had been placed with the papers in said cause at an early stage, but never had been used as evidence by either of the parties until so used by the plaintiff’s counsel. The facts as to the surprise are as follows: The evidence having been concluded, the argument was opened by one of the attorneys for the plaintiff and was continued by two counsel for defendant ; and the other counsel for the plaintiff commenced his concluding argument. In the course of his argument, he relied on an answer of Addison Hyde to a hill of injunction which had been filed in the court of Albemarle, to enjoin a judgment against Harris, on one of the bonds assigned by Harnsbarger as aforesaid. In that answer, filed in 1822, Hyde admitted it had been assigned to him for a valuable . . consideration. The defendant’s counsel interrupted plaintiff’s counsel, and stated that that record was not in evidence, and could not be relied on. The plaintiff’s counsel insisted that it was in evidence, and reminded the defendant’s counsel that they had had it brought from Albemarle and filed among the papers in the cause. The defendant’s counsel said that he had not anticipated any reference to it, and that he had had no opportunity of commenting on and explaining that answer. The plaintiff’s counsel offered to surrender the floor to let him comment on it then, or that he could do so when he had closed his argument. The latter course was preferred and adopted.
    When the plaintiff’s attorney had closed, the defendant’s attorney commented on and explained the answer, and endeavoured to shew that it was not in conflict with the witness’s evidence on the trial. He also insisted that the witness Hyde should have an opportunity of making his own explanation, which was assented to by the plaintiff’s attorney and the Court: and Hyde was called into Court and explained the apparent conflict to the best of his recollection. After these explanations and remarks by both counsel, the jury retired.
    The Court being of opinion that the verdict was not contrary to the evidence, but was justified by the law and the evidence ; and that the additional ground relied on for a new trial, viz : the alleged surprise in the course of argument and evidence relied on by the concluding counsel was wholly insufficient, overruled the motion for a new trial, and rendered a judgment according to the verdict. Whereupon the defendant excepted; but the bill of exceptions referred to the whole evidence given on the questions of payment and usury, as set out in the first bill of exceptions, instead of sta- .. , „ . tmg the tacts proved.
    The verdict in this case was rendered on the 13th of June, and the application for a new trial seems to have been made and refused on the same day. On the 6th of July, during the same term of the Court, the defendant again moved the Court for a new trial, on the ground that one of the jury had consented to the verdict under a mistake or misunderstanding of the instructions of the Court; and that but for that mistake, he never would have assented to the verdict. This motion was accompanied by the declaration of a purpose on the part of the mover, that if successful, the defendant intended to withdraw his pleas, confess a judgment and resort to equity for relief; and only desired by setting aside the verdict, and eo instanti waiving defence at law, to remove the impediment to full equitable relief which a judgment rendered on the verdict would interpose : And the Court was asked to grant a new trial upon that condition only. On the hearing of this motion, the defendant introduced the affidavits of two of the jury. One of these stated that he understood the Judge to say “ that he would not give the instruction,” (the second instruction asked for by the defendant,) “as usury had not been proved by the defendant in this case.” He further stated, that when the case was closed by argument on both sides, his mind had been fully made up that usury had been proved in the case; and if the Judge had made no remarks whatever after the argument was concluded, the affiant never would have consented to the verdict which was rendered in this case; but that he believed at the time he was honestly bound by what the Judge had said, as understood by affiant, to find for the plaintiff on the plea of usury.
    
      The other juror stated that he understood the Court refusing the second instruction, to remark that “ in this case usury had not been proved by the defendant; that the defendant had alleged usury, but had not proved it; and that a party who alleges usury is bound to prove it.” That so understanding the remaks of the Court, he felt bound to find on the plea of usury for the plaintiff.
    A third juror who was examined by the plaintiff, stated that he understood the Judge to say that he who alleges usury must prove it, and that in this case the usury had not been proved; but that the remark of the Judge did not influence his verdict, as his mind was made up before the Judge made the remark.
    The other nine jurors were examined by the plaintiff, and stated that they did not understand the Judge in his remarks made upon refusing the defendant’s second instruction, that he did not think the usury had been proved in this case; but had understood him merely as stating that the party who alleged the existence of usury must prove it.
    The juror first above mentioned, stated a conversation which he held with two of the jurors in the jury room, which he said confirmed his understanding of the remarks of the Judge : but these jurors stated that they had no recollection of the conversation, and that they did not think it probable they could have forgotten it. Indeed the statements of the different jurors of what passed in the jury room were very variant. Upon hearing the evidence, the Court sustained the motion for a new trial, but on condition that the defendant should pay the costs of the trial at the present term, withdraw the pleas of usury and payment, and confess a judgment for the plaintiff’s demand with costs. And thereupon the defendant paid the costs of the trial, withdrew the pleas of usury and payment, and confessed a judgment for the sum of 3850 dollars, with legal interest thereon from the 30th of April 1826, till paid, and the costs of the suit, subject to a credit for the sums endorsed on the bond.
    The plaintiff excepted to the opinion of the Court, granting the new trial upon the conditions specified; and applied to this Court for a supersedeas, which was awarded. The defendant also applied to this Court for a supersedeas to the judgment, which was allowed.
    The cause was argued in writing by Stuart, for Harnsbarger’s adm’r, and orally by Fultz, for Kinney.
    
    
      Stuart, for Harnsbarger’s adm’r.
    The object bf the Court in granting the new trial in this case, was to afford the defendant an opportunity of renewing the contest in a Court of chancery, not on any new evidence or issue, nor on any legal ground, but merely to let the defendant change the forum from law to equity, and the trier of the issues so as to substitute a Judge in place of a jury. And this, too, when the Judge, after hearing the case four times, thought the verdict right: and after the lapse of near 30 years from the date of the alleged usury; after the bonds had been renewed time and again; and after all the parties whose answers could throw any light on the transactions, had long slumbered in their graves.
    The appellant contends that the Court had no power to make such a bargain: and that it erred in granting the new trial. Without going into a review of the authorities on the general doctrines regulating the grant or refusal of new trials, I beg leave to refer to the following decisions as having a direct bearing on this case.
    “ A new trial ought never to be granted where it appears that the party asking it has had a fair trial on the real merits of the case, and that justice has been done.” Goode v. Love’s adm’r, 4 Leigh 635.
    
      
      “ Where a new trial is moved for on the ground of misdirection on a point of law, if the Court see that justice has been done, they will not set aside the verdict, nor enter into a discussion of the question of law.” Edmondson v. Machell, 2 T. R. 4.
    “ A direction to the jury partially incorrect, is not a ground for a new trial where the verdict is consistent with the justice of the case.” Wickes v. Clutterbuck, 9 Eng. C. L. R. 490.
    I further contend that the Court ought not to have received the evidence of jurors to impeach their own verdict. The principles of public policy which forbid the introduction of such testimony are so obvious, and so fully stated in the cases which I will proceed to cite, that I shall not extend this note by incorporating them in it.
    “ The Court will not interfere to disturb a recorded verdict on an affidavit of one of the jury that the amount of the damages taken exceeded what they had intended to give.” Mather v. Bailey, 1 Price’s Exch. R. 1.
    
      “ An admission by jurymen, made after they have separated, though on the day of trial, is not a sufficient ground for a new trial.” Davis v. Taylor, 18 Eng. C. L. R. 331.
    “ New trial refused on the ground that one of the jurors declared in open Court, in presence and hearing of the others, that the verdict had been decided by lot.” Burgess v. Langly, 44 Eng. C. L. R. 377.
    “ A new trial ought not to be granted on the affidavit of two of the jurors, that they were influenced in their verdict by information given by one of their own body in the jury room.” Price v. Warren, 1 Hen. & Munf. 385; see also Cochran v. Street, 1 Wash. 79 ; and Shobe v. Bell, 1 Rand. 39.
    “ The affidavits of jurors will not be received to impeach or alter their verdict, but they may be received to exculpate the jurors or support their verdict.” Dana v. Tucker, 4 John. R. 487.
    “ Jurors are not to he permitted to testify to the motives or inducements on which they have joined in a verdict.” Bridge v. Eggleston, 14 Mass. R. 245.
    “ The Court will not set aside a verdict on the affidavit of a juryman that it was decided by lot.” Owen v. Warburton, 1 Bos. & Pull. N. C. 326.
    “ A juror is not a competent witness to prove misconduct of his fellow jurors to impeach their verdict.” State of Conn. v. Freeman, 5 Conn. R. 348.
    “ A subsequent confession by one of the jurors, that the jury drew lots which six of them should decide the cause, not otherwise proved to the Court, no ground for new trial.” Clark v. Stevenson, 2 Wm. Bl. 803; Aylett v. Jewel, 2 Wm. Bl. 1299.
    “Affidavit of a juror that the jury having been divided, tossed up, and that the plaintiff had won, was rejected as incompetent.” Vaise v. Delaval, 1 T. R. 11.
    These authorities clearly shew that the affidavits or evidence of the jurors ought not to have been received even if promptly and voluntarily tendered. A fortiori ought they not to have been received when it appears that they were obtained by the pumping of an agent sent around to obtain affidavits, after the lapse of weeks after the verdict had been rendered, and when the jurymen had made no complaint.
    Upon the point presented in bill of exceptions, No. 2, although it does not arise in the present aspect of the case, the facts stated in the bill of exceptions shew there was no just ground of complaint. Defendant had filed the record with many others, none of which were read, though they were referred to. Plaintiff’s counsel regarded it as in evidence, and commented on it. Defendant’s counsel thought differently, but did not raise the question so that the Court could decide it, and thereby leave either party at liberty to except and appeal: He merely stated his objection. The plaintiff’s counsel offered to afford an opportunity for reply. This was acceded to. The reply was made, and explanatory evidence introduced. The defendant’s counsel took no exception, and thereby waived his objection. After verdict he seeks raise the question again on a motion for a new trial : He now comes too late. If there was any irregularity, it ought to have been taken advantage of by exception. But there was none; or if it existed, it was cured by the subsequent proceedings.
    Upon the whole, the Court transcended its power in making a bargain for a new trial with defendant; and the circumstances did not in any view of the case, warrant the granting a new trial.
    
      Fultz, for Kinney,
    
    went into an examination of the evidence to shew that there was usury in the bond of the 30th of April 1821, for which the bond'sued on was given. And he made a calculation to shew that the amount of the seven bonds assigned by Harnsbarger to Hyde and M'Cue, was less than the amount of the bond he received, precisely 10 per cent., minus M’Cue’s small bond for 11 dollars 34 cents.
    He then insisted that the evidence made out a prima facie case of usury; and that the burden was therefore upon the plaintiff to shew a further consideration. And he referred to Calder v. Rutherford, 7 Eng. C. L. R. 447; Fort v. Metayer, 10 Martin’s R. 436; Turnbull v. Marlin, Id. 419; Doe ex dem. v. Price, 1 Man. & Ryl. 683; Topper v. Taylor, 6 Serg. & Rawle 173; Greenleaf v. Birth, 6 Peters’ R. 302; Clarke v. Courtney, 5 Peters' R. 319.
    He insisted further, that the remark of the Judge stated in the second exception, was in effect an instruction upon the sufficiency of the testimony, and was certainly so understood by some of the jury.
    
      He insisted further that the granting a new trial was a matter of discretion. 3 Black. Com. 388, 392; 2 Tuck. Com. 305; 4 Chitty’s Practice 80; The Warden, &c. v. Morris, 9 Ves. R. 155; Edmondson v. Machell, 2 T. R. 4. That the plaintiff having gotten his judgment by confession, which was a release of all errors at law, he had no just cause of complaint. But that the verdict having been rendered under a mistaken apprehension of the instruction of the Court, it was the defendant who had just cause to complain that the verdict had been set aside upon conditions, instead of being set aside absolutely.
    Upon the question whether it was proper to set aside the verdict on the evidence of the jurors, the counsel referred to Parr v. Soames, 1 Barnes 29; Hale v. Cove, 1 Strange’s R. 642; Aylett v. Jewel, 2 Wm. Black. 1299; Grinnell v. Phillips, 1 Mass. R. 530; Cowperthwait v. Jones, 2 Dall. R. 55; Bradley v. Bradley, 4 Id. 112; Smith v. Cheetham,. 3 Caines’ R. 57.
   Allen, J.

delivered the opinion of the Court.

It seems to the Court here, there was no error in the judgment of the Court refusing to give the second instruction asked for by the defendant in the Court below, or in the remark made by the Judge in refusing such instruction, “ that the party who pleads usury must prove it,” or in refusing a new trial for the alleged surprise on the said defendant by the counsel of the plaintiff in the Court below having in the concluding argument referred to the answer of Addison Hyde, which, although filed amongst the papers of the cause, had not before been read in evidence to the jury: As a full opportunity was afforded to the witness sought to be impeached by the use of the said answer, to explain the same, and to the counsel of said defendant to comment on the same, it does not appear how the irregularity, if any, in the use of said, document could have affected said defendant injuriously.

It further seems to the Court here, that as the hill of exceptions does not set out the facts proved, but the testimony merely, which is uncertain and vague in its character, and the weight of which, and what facts could he deduced therefrom, depended entirely upon the credit given to the witnesses, it is not competent for this Court to review the judgment of the Court which tried the cause, deciding that the verdict was not contrary to the evidence.

It further seems to the Court here, that the alleged mistake of the jurors as to the instruction of the Court, did not furnish a sufficient ground to set aside a verdict in all respects fair, and in the judgment of the Court below, in conformity with the evidence: That to permit a verdict which, in the opinion of the Court that tried the cause, was not contrary to the evidence, and by which, for aught that appears to this Court, full justice was done, to be set aside upon the evidence of a few of the jurors, made under the circumstances described by the record, respecting their understanding of an instruction of the Court upon questions of law raised at the trial, would lead to dangerous consequences, as holding out inducements to tamper with the jurors after they had dispersed, and may have forgotten the circumstances which did actually occur. It therefore seems to the Court here, that the last order setting aside the verdict upon the terms imposed by the Court on the said defendant, was erroneous. If the facts entitled the plaintiff to the verdict, he was equally entitled to the judgment of the Court thereupon, and to all the consequences which might enure to him from such judgment upon the verdict so found.

It is therefore considered that said judgment setting aside the verdict, and awarding what is termed a new trial pro forma, to enable the said defendant to withdraw his pleas and confess judgment, was erroneous, and the same is reversed with costs. And this Court proceeding to render such judgment as the Circuit Superior court should have rendered, &c., judgment on the verdict.

And in the second case, it seems to the Court here, that as no cause was shewn for setting aside the verdict and granting a new trial, and as the plaintiff in the Court below was entitled to a judgment on the verdict, it is unnecessary to consider how far it was competent for the Court, if a proper case existed for granting a new trial, to impose a condition upon the said defendant of confessing a judgment. It is therefore considered, that as the defendant in error is the party substantially prevailing, inasmuch as the order setting aside the verdict has been reversed, that the defendant in error recover of the plaintiff in error his costs here expended.  