
    Stannard v. Graves & al. Ex’rs of Blaydes.
    [October Term, 1800.]
    Chancery Practice — Issue Out of Chancery — Three Verdicts. — After three verdicts the Court of Ghan-eery, did right in decreeing according to tile opinions of the juries.
    Same — Same—Court Dissatisfied with Verdict. — If the judge who tried the cause is dissatisfied with the verdict it ought to he certified or a hill of exceptions taken; else the omission cannot he supplied hy affidavits, especially of the counsel, for it would be a most dangerous precedent.
    Same — Same—Discretion—-Appellate Review. — The discretion of the chancellor is to he exercised on sound principles, of which this Court may judge.
    .This was an appeal from a decree of the High Court of Chancery, where Stannard brought a bill, against Graves and others executors of Blaydes, to be relieved touching judgments upon two bonds given by him to Blaydes, for some carpenters work done by the latter. After answer, replication, and commissions to take depositions, the cause was heard upon the bill, answer, exhibits, and the depositions, which were very numerous. When the Court of Chancery dissolved the injunction as to part of one of the bonds, and directed, issues to be made up between the parties to enquire whether the dispute between the plaintiff and the testator concerning breaches of the articles of agreement entered into by them, and referred to in the bill was adjusted at the time when the plaintiff executed the two bonds, on which the judgments were obtained; and, if not, to enquire, whether the testator was guilty of a breach of those articles, and to assess damages for such breach; and also to en-quire whether any agreement was made between the plaintiff and the said testator at the time of executing those bonds, or before, other than *the first, that the latter should perform other work for the former, and whether, such work was performed accordingly, and, if not, to assess the damages sustained, by the breach of that agreement.” The jury found, “That the dispute between the plaintiff and the testator of the defendants concerning breaches of the articles of agreement, entered into between them and referred to in the first issue, was adjusted at the time when the plaintiff executed the two bonds, on which the judgments were obtained. And that an agreement was made between the plaintiff and the testator of the defendants, before the time of executing the two bonds mentioned that the said testator should perform other work for the plaintiff, and that the second agreement was adjusted in the amount of the two bonds aforesaid when executed.”
    Upon the verdicts being certified into the Court of Chancery, that Court, for reasons appearing, set aside the verdict and ordered a new trial of the second issue. And, “setting aside so much of the several orders as is inconsistent with what fol-loweth,” directed a jury to be impanelled between the parties to enquire, “Whether the testator of the defendants, at the time of the execution of the bonds, on which were rendered the judgments sought to be injoined, did agree to make good any defects in the building of the plaintiffs dwelling house mentioned in the first agreement between the said testator and the plaintiff: And whether such defects were made good accordingly, and if not, to ascertain the damages occasioned by breach of that agreement: To enquire whether the said testator did perform the work, which he had agreed to perform over and above the building of the dwelling house in a faithful and workman like manner; and, if not to en-quire what damages the plaintiff sustained, by non performance of that work and infidelity of the builder; and lastly to enquire, whether the damages sustained by the plaintiff, for either *or both of those breaches, were satisfied, allowed, accounted for, or otherwise adjusted between him and the said testator, at the time of executing the forementioned bonds.”
    Upon these last issues, the jury found, “That the testator of the defendants did not agree, at the time of the execution of the bonds, to make good any defects in the building of the plaintiffs dwelling house; That he did not perform all the work which he had agreed to perform, over and above the dwelling house: But that there was a complete settlement between the plaintiff and the testator of the defendants, at the time of the execution of the bonds, and that no allowance was made by the plaintiff to the testator of the defendants at the time of executing the said bonds for any work, which was not done.”
    Upon this last verdict being certified into the Chancery, the plaintiff moved that the verdict might be set aside, upon two affidavits which he filed; but the motion was rejected, by that Court, Which decreed, “if the money for which the injunction was dissolved had been paid that the injunction as to so much should be perpetual, but for the whole of that money, or the part thereof, yet unpaid, the judgment, which was to be discharged by payment of ¿■179., do remain as a security, and the bill was to be dismissed as to the other judgment. ’ ’
    From which decree Stannard appealed to this Court.
    One of the affidavits, referred to in the decree, stated, that the witness after the last verdict moved the District Court to certify that it was contrary to evidence; and that one of the judges, (Mr. White,) after they had considered the motion said it was unnecessary, as it would appear from the account stated between the parties, which would be sent to the Chancery Court, that the verdict was against evidence.
    *The other affidavit stated, That after the last verdict, one of the jurors, in a conversation with the witness, mentioned, that, as the said Stannard had given his bonds to Blaydes, if all the proof in the world had been given in the said Stannard’s favor he would have given judgment against him; and that the rest of the. jury were led to give judgment from the same principle.
    Nicholas, Warden and Wickham for the appellants,
    contended, that the evidence contained in the record was clear; and therefore the Chancellor ought to have decided on it himself. Consequently, that he either ought to have directed no issue at all, (Southall v. M’Keand from the order book,) or if any, that it ought only to have been an issue to ascertain the damages. That one of the judges who tried the cause, thought the verdict, wrong, and when asked, for a certificate to that effect declined it, saying that the account would shew it.
    Randolph for the appellee,
    contended, that the whole was a question of fact; and therefore proper for the determination of a jury. 2 Com. 316, 626. Consequently that the issues were properly directed; and, after three verdicts, that the question ought to be at rest. That there was no certificate, or .other record, of the opinion of the judge; and no other evidence, of it, was admissible. Besides, the reason ascribed to him, for the opinion which he was said to have expressed, was not sufficient.
    
      
      issue Out of Chancery — Discretion—Appeilate Review. — The courts of chancery jurisdiction have a legal discretion on the propriety of directing issues; their action in regard thereto may he reviewed by an appellate tribunal. The principal case is cited, in support of this proposition, in Reed v. Cline, 9 Gratt. 136; Miller v. Wills, 95 Va. 351, 28 S. E. Rep. 337; Beverley v. Walden, 20 Gratt. 154; Wise v. Lamb, 9 Gratt. 302; Fishburne v. Ferguson, 84 Va. 102, 4 S. E. Rep. 575; Rohrer v. Travers, 11 W. Va. 154; Mahnke v. Neale, 23 W. Va. 82. See Jarrett v. Jarrett, 11 W. Va. 584. See foot-notes to Beverley v. Walden, 20 Gratt. 147; Magill v. Manson, 20 Gratt. 527; Hord v. Colbert, 28 Gratt. 49; and monographic note on ‘ ‘Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
      Continuance — Motion for — Notice of — Calling Defendant. — The principal case is cited with approval in Wilkinson v. Hendrick, 5 Call 14, 15, but distinguished on page 13 of the same case.
    
   PENDLETON, President,

delivered the resolution of the court as follows.

The first question made was, whether the Chancellor erred, in directing an issue to be tried in this case at all; or, at least, other than to ascertain the damages?

The appellants counsel were correct in stating that the discretion of the Chancellor, upon this and all other occasions, is - to be exercised, by him, *upon sound principles of reason and justice; and that this as an appellate court, has a right to judge, whether he has so exercised his discretion, in the present case? But they are unlucky in the application.

The observation urged that the evidence was so plain, the Chancellor ought to have been satisfied, might have been repelled by the event, since two verdicts had been given against this plain evidence. But how did it then appear?

The points in dispute had been submitted to a jury, in a suit on the bond: Whether properly or improperly is immaterial: Most of the same witnesses were examined; particularly those of the appellant, Long and Thorp,, the most material; and a verdict passed against the claim. Three jurymen had sworn they g'ave little credit to their testimony, for reasons which they were the judges of; no matter what. Was the Chancellor to shut his eyes to this strong bar against the claim, and say with the counsel, the evidence was plain, and the credibility of those witnesses not in question? Strange supposition.

He might probably have been justified in dismissing the bill, as the subject, had passed a jury; but considering, that the jury might have been embarrassed by the bond, he more wisely directed an issue, framing it so as to avoid that embarrassment.

A verdict is again found against this plain evidence, as it is called; and the appellant was indulged with a third jury, who still find an according verdict: And why should not the Chancellor be satisfied at last?

Perry speaks of a conversation with a juryman, intimating that he decided upon improper principles; a conversation probably mistaken, or garbled; and not to be regarded, on any view of propriety.

*Mr. Brooke moved for a certificate, that the verdict was against evidence: Mr. White, the junior judge, said, it was unnecessary; for the account would shew it, and Mr. Brooke acquiesces: The other judge was silent, and might not think it against-evidence.

The certificate must appear of record, from the court; or upon a bill of exceptions, if refused, and is not to be supplied by affidavit; especially of lawyers; a most dangerous precedent.

Where is the account, which justifies Mr. White’s opinion? The private accounts of the parties, in the record, prove nothing, - not being authenticated themselves, but mere exparte statements.

The verdict stands unimpeached; was the third upon the subject; and all of them agreeing. It was therefore high time the matter should be put at peace. This is done by the decree; which is affirmed.  