
    M’Rae v. Richard Woods.
    October Term, 1795.
    Chancery Practice — Excessive Verdict. — If £He plaintiff at Law, recover more than he is in conscience entitled to, and there is no standard by which a Court of Equity can ascertain the amount of the excess unrighteously recovered, that Court will set aside the verdict in toto.
    This was an appeal from the High Court of Chancery, in a suit instituted there, by the appellee against the appellant. The bill states, that the plaintiff in the year 1769 had a lottery, the highest prize in which was some improved lots in Char-lottesville and a tract of land, which property, in the scheme of the lottery was estimated at £440. That Roderick M’Rae purchased two tickets, Henry Mullens one, to which the plaintiff added another, the whole forming a joint property, in which Roderick M’Rae owned one half. That one of the partnership tickets (No. 69) drew the highest prize, and was therefore entitled to the property above mentioned. But the ticket so soon as its good fortune was known, was forcibly taken from the said Roderick M’Rae by the defendant Philip M’Rae, who claimed the entire benefit of the prize. That the plaintiff and Mullens having sold their interest in the prize to Roderick M’Rae, the plaintiff conveyed the whole property to the assignee of Roderick. That about fifteen years after this, the defendant commenced a suit against the plaintiff at law, and in the absence of the plaintiff’s witnesses, who could have proved the tortious manner in which the plaintiff acquired the possession of the ticket, a verdict was rendered against him for ¿£451: 18: 4 damages, for the whole value of the ticket. The bill prays an injunction to the judgment at law.
    The answer states, that half of the ticket in question was purchased by Roderick M’Rae for the defendant, the day before the drawing, and that after it was known to have been fortunate, it was delivered to the defendant by the said Roderick. That the defendant never claimed more than one half of the prize drawn by this ticket.
    The evidence, as to the right of Philip M’Rae and the manner of his obtaining possession of the ticket is extremely contradictory.
    The subject of dispute was submitted to arbitration by the two M’Rea’s (as appears by the testimony of some of the arbitrators), and a- decision was given in favor of Philip M’Rea’s title to one half of Roderick’s interest in the prize. One of the jurymen who tried the cause deposes that his intention was to *give damages for the whole value of the: ticket. Another juryman deposes, that the jury gave to the appellant Philip M’Rae, damages, for the interest which Roderick M’Rae held in the ticket. The declaration filed in the action at law 'claims the whole, ticket, and the verdict is general, “that the defendant did assume upon himself as the plaintiff hath declared against him and. assess the damages to £451: 18: 4.”
    The CHANCELLOR upon the hearing of this cause, directed the issue between the parties in the action at common law, to be tried again; from which decree the defendant appealed.
    Marshall for the appellant.
    I shall object 1st, to the decree in toto; or if I am wrong in that, then 2dly, to so much of it, as directs a trial of the right of the appellant to any part of the ticket in dispute.
    Upon the first point I contend, that the bill ought to have been dismissed. The equity stated is, that the appellant was entitled to no part of the ticket, but having obtained the possession of it tortiously, he thereby acquired prima facie an evidence of right, which on account of the appel-lee’s want of testimony at the trial, he was. unable to controvert. The equity now set up, (namely, that the appellant was only entitled to a fourth of the ticket,) not being stated in the bill, he had no opportunity given him of controverting it by his. answer, nor was it necessary for him to do so; and therefore, whatever proof the ap-pellee might produce as to the extent of the appellant’s interest, it was improper for the Chancellor to decide upon it. The appellee might have amended so as to put in issue the point for which he now contends; but not having done so, he is confined to the equity stated in the bill.
    The court are not now at liberty to say, that the verdict is wrong so far as it gives to the appellant the value of a moiety of the ticket. All the testimony in the cause proves the right of Philip M’Rea to a moiety, unless it be the award, which is made upon the principles of accommodation, and. to which the appellee having objected, it would be improper to allow it any weight in the cause, by considering it as evidence of the rights of the parties.
    The Chancellor therefore erred as I conceive in setting aside the verdict. The trial before the jury was a fair one. The appellee does not even charge in his bill that he was surprized, otherwise than by a general assertion, that he was unprovided with testimony, without setting forth who. were the witnesses, the benefit of whose testimony he wanted, or what they *could have proved. It does not appear that there was any evidence before the Court of Chancery which was not given to the jury, and they having decided upon the right, the verdict ought not to have been set aside.
    
      But admit the court should be satisfied that the appellant was only entitled to a fourth of the tickets, then I insist secondly, that the Chancellor ought not to have set aside the verdict, but should have injoined one half of it.
    In cases where a verdict is vicious in all its parts, or where no standard is furnished by which to modify it, I admit it ought to be set aside in the whole. As in cases where it is unfairly obtained, or where the action is merely founded in damages, as in trespass and the like. But in this case, if Philip M’Rae was entitled to only one fourth, instead of one half of the ticket, then he is as certainly entitled xo one half of the amount of the verdict, as in the other instance he would have been to- the whole.
    As to the part of the ticket for which the jury gave him damages, there is no sort of uncertainty. The whole testimony in the cause proves, that the appellant claimed only one moiety of the ticket. One of the jurj'men proves that the damages given, were for that part. A single juryman deposes, that he intended the damages for the whole ticket. Consider what a dangerous precedent it would establish, if in an}' instance, a single juryman, or even two, should be permitted after a fair trial to set aside the verdict, by saying, that he intended to find in this, or in that way. Such a decision would be in direct opposition to that laid down in the case of Cochran v. Street (ante vol. 1, p. 79,) where the court went entirely upon the evidence of a large majority of the jurors, which proved that they decided upon a mistake.
    In opposition to this solitary juryman, is not only the evidence of another juryman, as well as that of many other witnesses, but the amount of the damages assessed, plainly proves, that the verdict was for a moiety only of the value of the property, with interest from the time it was withheld from the appellant.
    The right of the appellant to interest, cannot I presume be contested. If the ap-pellee had not wrongfully conveyed the property to Roderick M’Rea, and the appellant had resorted to a court of Chancery to compel a conveyance of the part belonging to him, the mesne profits would have been decreed, and it would have been error to have refused. Having sited for damages, *he was upon the same principle entitled to interest in lieu of the profits. And if the jury ought to have given interest, the court will presume they did do so, and not that they gave damages for the whole value of the ticket, which the appellant did not claim.
    Why then shall the verdict be set aside, and the appellant put to sea again to establish his title, which has once been fairly ascertained? If he be entitled only to a fourth, his right to a fourth ought not again to be put in jeopardy, since the jury, having given damages for a half, have furnished this court with a rule to go by, in ascertaining the excess which ought in equity to be injoined.
    But if it were necessary for the court to direct an issue at all, it ought to have been one to ascertain the value of the fourth part, and not one, which was to bring the appellants right to any thing, again into question.
    Campbell for the appellee.
    A short attention to the history of this transaction, will furnish a sufficient answer to the first point.
    In the suit instituted at law by Philip. M’Rae against Woods, he claimed the whole of the ticket, and recovered a judgment for the whole, in damages. Woods applied to the Court of Chancery, setting forth, that tho’ Philip M'Rae was in possession, of the ticket, yet he obtained it tortiously, and had no title whatever to it. Philip M’Rae, in his answer, admits himself entitled only to one half of the ticket, and upon these proceedings it necessarily and properly became a question with the Chancellor, whether Philip M’Rae was entitled to any, and to what part of the ticket?
    There appears to be two subjects of en-quiry now before the court. 1st, Can the verdict already found be established? And if not, then 2dly, How ought the court to proceed after setting it aside?
    1st, That the verdict cannot stand as it is, is what I confidently insist upon. If it were intended to give the appellant damages for half the ticket, it is unwarranted by the testimony in the cause, which goes completely to prove, that if he were entitled to any thing, it could only be to a fourth.
    If damages for the whole ticket were intended, then the appellant’s counsel does not attempt to maintain it. Yet one of the jurymen has deposed, that he intended the damages for the whole of the property. This testimony is objected to by Mr. Marshall, who seems to consider a juryman in such a case, as an incompetent witness. Let me ask, if a bye stander had proved misbehavior *would the court who tried the cause, or a court of equity have hesitated to set aside the verdict? It is admitted, that if many jurymen had concurred in proving- the same fact, that their evidence would have deserved weight. But let me ask, can the influence of truth depend upon numbers? Or can testimony coming from a juryman be less worthy of credit, than if given by a stranger? If he had been himself mistaken, or if he knew of a mistake in any of his brethren, it was his duty to expose it, that the error might be corrected.
    2d, If then the verdict is to be set aside, what is the court to do? It is entire, and cannot be set aside in part and confirmed in part. It is either for the whole, or for half of the ticket. Both are wrong. But whether it be for the one, or ihe other, this court can at most only conjecture. One juryman says the first, the other the last. Where then is the standard which Mr. Marshall speaks of, by which the court can divide the verdict?
    The court must decree either upon the evidence, or upon the verdict. Not upon the last, because that is avowedly wrong. If that be given up, and the court suppose they can with propriety look into the evidence and decide upon that, I am ready to go into it. There is a case in Morgan’s Essays, of an action upon a bill of exchange. There were two counts in the declaration, upon one of which, the jury found for the plaintiff; upon the other, there was an improper finding for the defendant. The plaintiff desired to set aside the second finding, and to retain the first. But the court refused, as the verdict was entire. It is argued that the jury are to be presumed to have given interest, because they ought to have done so. But I do not think they ought. ' Philip M’Rae complains that Woods conveyed to Roderick M’Rae instead of himself. But this arose from the neglect of Philip M’Rae, who had improperly acquired the possession of the ticket, and without which no verdict could have been obtained. But Woods did right in convej'-ing to Roderick M’Rae to whom he had sold the' ticket. What considerations then prevailed with the jury in forming the verdict cannot certainly be known by the court.
    As to the value fixed upon the property in the scheme of the lottery, it furnishes no standard by which the intention of the jury can be explained.
    Marshall in reply.
    That a verdict is entire at law cannot be denied. But that a court of equity may, when there is a guide to go by, set it aside in part only, 85 is every day’s practice. *If the verdict be improper in the whole, as if the trial be unfair, or the whole finding be inequitable, or if it be wrong in part, but the court has no standard by which to distinguish the good from the bad, in such cases the whole verdict ought to be set aside. But if, as in the case of a bond, the plaintiff has recovered too much at law, what does a court of equity do? Not set aside the whole verdict, but injoin so much of it as the obligee in conscience is not entitled to. If it be necessary to direct an issue, the court does so as to the part disputed, but never sets aside the verdict which in the first instance is presumed to be right.
    There is a great difference between evidence to prove misbehavior in the jury, and the evidence of a juryman given long after the trial, as to his secret intentions at the time of giving his verdict. The former might be seen or heard, and with respect to which, compleat evidence might be adduced. The latter is concealed from all the world but the juror himself. No other person can know what were the secret workings of his mind. If the juryman in question went upon a mistake, it does not appear that he disclosed it to any person at that time. To permit him now, when impressions have been made upon his mind by one of the parties, to set aside the verdict, would be to establish a most dangerous principle, and such as must prove fatal to the purity of the jury trial.
    I still insist, that the jury were right in giving interest, since it was the duty of the appellee to make the deed to the person who had possession of the ticket; he acted improperly in conveying to Roderick, and by taking upon himself to decide the rights of the parties, he is liable to the appellant for the mesne profits, or for interest in lieu of them.
    
      
      Practice — Excessive Verdict — Remittitur—New Trial. —The principal case is cited with approval in Vinal v. Core, 18 W. Va. 61 ; Untried v. B, & O. R. R. Co., 34 W. Va. 260,12 S. E. Rep. 512.
      M’Rae v. Woods, 1 Hen. & M. 548, is the sequel to the principal case.
    
   RBEJMING, J.

In this case there is a great contrariety of evidence. The arbitrators gave Roderick M’Rae half of the ticket, and Philip M’Rae avers, that he claimed no more. But the declaration demands the whole, and it is probable that the verdict was for the whole, since the amount of the damages very little exceeds the price affixed to the property by the scheme of the lottery. To explain the principles by which the jury were governed, two of that body have been examined, and they differ from each other upon the main point. Objections were made to the examinations of the jurors; but it is not only usual, but I think proper to admit such evidence for the purpose of discovering errors which the jury may have committed. In this case, I should not feel an inclination to be over scrupulous in ^admitting testimony, when I reflect, that the appellant acquiesced for fifteen years without asserting his right to the property in question, until better evidence might be lost. I am well satisfied that Philip M’Rae, is entitled only to one fourth of the ticket, independantly of the award and evidence of the juror. He has recovered one half if not the whole, and as I can discover no standard by which to decree him what he is really intitled to, there seems to be no way left, but the one adopted by the Chancellor to do essential justice to the parties. I am therefore of opinion that the decree is right.

LYONS, J.

I think this case has come up too early. The Chancellor does not set aside the former verdict, but only directs an issue to be tried to satisfy his conscience. The question tried and decided by the jury was the right of the appellant to the ticket. The possession was considered, and certainly was at law prima facie evidence of title. But the question is, did the jury give a verdict for the whole of the ticket, or for a part and, for what part? How was the Chancellor to ascertain this with certainty? It is admitted, that the appellant was not entitled to the whole. No way remained, but to direct an issue to try the question for the information of his conscience.

But before the issue is tried,' and before it is known what would be the decree of the Chancellor, the party appeals. Ought the Chancellor to be restrained from directing issues to inform him whether a fact be one way or the other? Surely not, and therefore the appeal in this case is certainly premature. The inquiry is merely as to the extent of Philip M’Rae’s right. It is nothing to the court of equity how Philip M’Rae came by the ticket; but it is essential to know to what part he is entitled, and the value of it. At present it is impossible for the court to ascertain that point. I therefore think the decree right.

The PRESIDENT. — As I am of opinion that the appellant had no ground to come here at all, I shall not inquire whether he has done it too early, or not. Amidst the clashing testimony in the cause, it is evident to me, that Philip M’Rae had not a right to more than a fourth. As soon as the lottery was drawn, the two M’Rae’s began to dispute respecting this ticket. My own impressions are, that Philip M’Rae has no right at all; but I would not for this reason award a new trial, since the ver-diet which has been fairly found, is in his favor: But the extent of his right is not ascertained.

„ If then Philip M’Rae was entitled to no more than a fourth, the verdict which gives him much more ought to be corrected. We *were anxious to do this if we could without disturbing the verdict. But we could discover no certain standard by which the court could make the correction. We looked for it in vain in the value affixed to the property in the scheme of the lottery. We then looked for it in the sales, with no better success. The next chance was the verdict; but that appears to be for the whole, because the declaration claims the whole. We next referred to the testimony of the jurors; but they differ upon the subject. The appellant attempted to account for the sum found by the verdict by supposing, that the jury had allowed interest upon the claim, because they ought to have done so, but this is equally unsatisfactory. It is entirely discretionary with a jury, whether they will give interest or not. And whether they meant to give it or not, is perfectly uncertain. My own opinion is, that in this case, interest ought not to have been allowed. Woods gave notice to Philip M’Rae that he would not convey to him, but having together with Mullins sold their interest to Roderick M’Rae, he made a conveyance to him. In 1771, the land is sold as the property of Roderick; it is advertised in the neighbourhood of Philip, and the property is passed from hand to hand; in 1769, Philip having received notice from Woods, seems to have abandoned all intention of recourse against him and applies to Roderick. They agree to a reference, and in 1784, Philip M’Rae for the first time shews an intention to resort to Woods, having no prospect of recovering any thing against Roderick. Woods in consequence of this unreasonable delay has now no chance to recover against Roderick, and therefore ought not to pay interest.

Another mode was thought of by the court, and that was, to direct the jury to value a fourth of the ticket; but against this a considerable difficulty occurred on the subject of interest, in which we thought we had no right to controul the jury.

Upon the whole, I concur with the other judges in approving the decree.

Decree affirmed.  