
    *Prunty v. Mitchell & Cobbs.
    March Term, 1878,
    Richmond.
    Absent, Burks, J.
    P brings assumpsit against M, who pleads non-assumpsit, on which issue is made up, and on the trial there is a verdiet for P. M then asks for a new trial, and the court grants it on the condition that M shall pay the costs of the first trial, and agree that upon any future trial of the cause it shall be tried solely upon the issue already made up, without any additional plea; and to this M assents. The case is then sent to another court, and on the motion of M he is permitted to file another plea; to which P excepts. There is a judgment for M, and a writ of error by P — Hsxd:
    1. New Trial upon Condition — Province of Court. — It was competent for the court to grant the new trial upon the condition stated. If M objected to the condition, he should have excepted and spread the facts upon the record. Having accepted the condition, he is bound by his acceptance.
    2. Same — Same.—If the same court who heard the evidence on the first trial and granted the new trial on condition • might, at a subsequent term, have dispensed with it arid have admitted another plea, certainly no other court could do so.
    3. Same — Appeal—Review.—In reversing the judgment, the cause will be sent back to be tried upon the issue on the plea of non-assumpsit, or any matter which has occurred since the new trial was granted, and which is proper and sufficient to be pleaded puis darrein continuance.
    In April, 1868, Jesse Prunty brought an action of assumpsit in the circuit court of Pittsylvania against Mitchell & Cobbs, partners. At the June term of the court they appeared by their attorneys and filed the plea *of non-assumpsit, on which issue was made up. At a special term held in July, 1870, the case was tried, and there was a verdict and judgment in favor of the plaintiff for $1,092.94, with interest from the 13th of June, 1867. At the same term of the court the defendants moved the court for a new trial, on the ground of surprise. Cobbs filed his affidavit, saying he was absent at the trial, and thought the case had been continued until the next regular term of the court; and he gave the names of witnesses who would prove facts material to the defence, stating what facts they would prove. And Mitchell filed his affidavit, stating that both Cobbs and himself were bankrupts, and he supposed that the suit would be revived in the name of the assignee, and he would attend to it; and he concurred in the facts stated by Cobbs.
    The court granted the new trial upon condition that the defendants should pay the costs of the trial which had been had, and agree that upon any future trial of the cause it should be tried solely upon the issue already made up, without any additional plea; and the defendants agreed to the said condition.
    The court then sent the case to the county court of Pittsylvania. And at the June term, 1871, of that court the defendants tendered their pleas of discharge in bankruptcy; which were objected to by the plaintiff. But the court admitted the pleas, and the plaintiff excepted.
    The plaintiff then moved the court to enter up a judgment on the verdict of the jury, but the court overruled the motion; and the plaintiff excepted. He then took issue upon the pleas in bankruptcy, and by consent a jury was waived, and the court rendered a judgment for the defendants. The plaintiff then took an appeal to the circuit court of Pittsylvania, and the judge of that court deeming it was improper for him to sit in the case, it was removed to the circuit court of the city of Richmond; *and at the February term, 1873, of that court the judgment of the county court of Pittsylvania was affirmed. And thereupon Prunty applied to' this court for a writ of error; which was allowed.
    W. W. Henry, for the appellant.
    William M. Tredway, Jr., for the appellee.
    
      
      Conditions — Sew Trial Confined to Certain Issues. — -An order granting a new trial will be presumed to award a new trial on all the issues and to reopen the whole case unless there are specific directions to the contrary. Where all the issues are essential and each involves the merits of the controversy the whole case must be opened. The courts have power to impose such reasonable terms and conditions as will promote justice and prevent useless litigation such as the condition that the new trial shall be confined to certain issues. 14 Enc. Pl. & Pr. 938. See also 4 Min. Inst. (2nd Kd.) 840 and 848, where the principal case is cited and approved.
    
   ANDERSON, J.,

delivered the opinion of the court.

This cause is' brought here by the plaintiff in error, who was also plaintiff below, by writ of error to the judgment of the circuit court of Richmond affirming the judgment of the county court of Pittsylvania. The cause was first tried in the circuit court of Pittsylvania upon an issue of non-assumpsit, which was the only issue. The jury rendered a verdict for $1,092.94, with interest, for which there was judgment. Upon motion of the defendants, “the court ordered that the said verdict and judgment should be set aside and a new trial granted the defendants, upon condition that they would pay costs of this trial, and agree that upon any future tidal of this cause, it should be tried solely upon the issue already made up, without any additional plea; and thereupon the defendants agreed to said conditions, and the said verdict and judgment were accordingly set aside and a new trial granted.” At a subsequent day the cause was removed to the county court of Pittsylvania county. ■

The court is of opinion that the judge of the circuit court had the power, in the exercise of a sound discretion, to restrict the new trial to a particular issue, and consequently to the issue which had been made in the first trial, and to grant the new trial upon the conditions recited. Other terms than the payment of costs may be ^imposed on the .party applying for a new trial. The new trial may be limited to a single point. Hilliard on New Trials, 2d edition, p. 68, citing Lainey v. Bradford, 4 Rich. R. 1. The practice of granting a new trial after judgment as to part, and letting the judgment stand for the residue of the demand-sued for, although sometimes questioned, is held to laave bfeen too long sanctioned now to be disturbed. Ibid., citing Edwards v. Lewis, 18 Alab. R. 494. A new trial may be ordered upon á particular question without reopening the whole case. Ibid., p. 69. citing Thwaites v. Sainsbury, 7 Bing. R. 437, where the new trial was ordered, but upon conditions of payment of costs, bringing into court the sum claimed, and restricting the second trial to a single point.

In Graham & Waterman on New Trials, Vol. I, p. 604, the author says: “The terms imposed on setting aside verdicts, in addition to costs, may be divided into ordinary and extraordinary.” “The extraordinary terms arise out of the merits of the case, the relative situation of the parties, the probable consequences of delay, the advantage or disadvantage which may result to either party from the state of the pleadings, the prejudice which may result to the prevailing party from opening the whole case;” these, and other considerations which he mentions, he says, “all press upon the mind of the court, and call for salutary conditions to accompany the relief granted.” And he adds: “To accomplish at the same time the claims of justice by sending the case to another jury, and protect the rights of the party in possession of the verdict, the courts will direct the requisite stipulations to be inserted in the rule.” After citing many cases in which conditions had been imposed, he says: “It may be safely asserted, that no case can occur presenting circumstances timely addressed to the discretion of the court, in which the rights of the parties may not be fully protected by the imposition of conditions meeting the exigency.”

*ln Thwaites v. Sainsbury, 20 Eng. Com. L. R. p. 193, 7 Bingham, supra, the court observing that in causes where the defence was set out in pleading, the parties would on a second trial be necessarily confined to the issues which were on the record at the first trial, and that it was expedient the same course should be pursued where a particular line of defence had been relied on under the general issue, imposed the following conditions on the defendant: payment of costs, bringing into court the money sought to be recovered, and limiting the enquiry on the new trial to a single point. If the court could limit the enquiry to a single point, which was within the line of defence at the former trial, it could surely confine the party to the issue which was made up at the first trial. It is not necessary for the court to go to the extent of the cases cited to reach the conclusion to which we have been brought in this case. And there is nothing in our statute law which takes away from the courts or impairs their inherent and essential power to impose other precedent conditions than the payment of costs upon the party applying for a new trial.

But it was contended by the learned counsel for defendants that the circuit court of Pittsylvania did not properly exercise a sound discretion in thus restricting the defendants to the issue made at the first trial. How can it be so held by the appellate tribunal? The facts which show the grounds upon which the circuit court imposed that condition, are not set out, and do not appear in the record. It was competent for the defendants to have objected to it and refused to accept the new trial upon that condition, and to have taken exceptions to the ruling of the court requiring it, and had the facts certified, which would have enabled the appellate court to review the grounds upon which the court of trial, in the exercise of its discretion, deemed it proper to grant the new trial only with such restriction. But the defendants *did not deem it judicious for them to pursue that course, but, on the contrary, they agreed to accept the condition, which agreement was entered of record. They are after-wards estopped to -object to it; and if they were not, the facts upon which the rulings of the court was founded are not set out in the record, so as to enable this court to determine that the ruling of the circuit court was erroneous. And upon the principle that what has been done by a court of competent jurisdiction, must be presumed to have been rightly done until the contrary appears we cannot say that there was error in the ruling of the circuit court now objected to.

The court is also of opinion that it was not competent for the county court, to which the cause was removed, to revise and set aside the order of the circuit court restricting the new trial as aforesaid, or to change the terms upon which the new trial was granted to the defendants by the circuit court. The circuit court only, before whom the first trial was had, was competent to determine whether a new trial should be granted, and to decide upon what terms it should be granted; subject, of course, to review by the appellate court, upon an exception to its decision, with the facts spread upon the record. If the same court before whom the trial was had' and the evidence was given, could, at a subsequent term, revise its order and remove the restriction, it could not be done by another court, even of equal jurisdiction, who had not heard the evidence at the first trial and was not cognizant of the facts and considerations upon which the court before whom the first trial was had deemed it proper to impose the condition upon which a new trial would be granted. The court if of opinion, therefore, that the county court erred in not restricting the new trial to the issue which had been made up at the first trials and in admitting the pleas of the defendants, which put new matters in issue; and that the circuit *court of Richmond, to which the cause was removed, erred in affirming the judgment of the county court by which the errors aforesaid were committed.

The court is further of opinion that the defendants are entitled to a new trial upon the issue which was of record at the first trial, by the order of the circuit court of Pittsylvania, and which, it seems, was the only issue upon which they sought a new trial, notwithstanding the error of the county court in allowing the new trial to be had on other issues; and that therefore it would not be proper now to enter up a judgment upon the verdict of the jury on the first trial.

Upon the whole the court is of opinion to reverse the judgment of the circuit court of Richmond, and to remand the cause, with instructions to reverse the judgment of the county court of Pittsylvania county, set aside the verdict of the jury upon the trial in that court, and the issues upon the new pleas of the defendants, and to award a venire facias de novo, to try the cause ■again; and if in the further progress of the cause, the new pleas filed by the defendants at the second trial and upon which the plaintiff was required to take issue, or any other new plea should be tendered, the same shall be rejected, and the trial be confined and restricted to the issue which was made at the first trial, unless the new matter of defence pleaded arose subsequent to the order granting a new trial.

The judgment was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the county court of Pittsylvania should have confined the parties in the new trial to the issue that was made up at_the previous trial in the circuit court of said county in conformity with the order of said court, and that the said county court erred *in admitting the defendants to plead new matter which was not in issue in the former trial, the same not having arisen subsequent thereto; and, therefore, that the circuit court of Richmond erred in affirming said judgment of the county court of Pittsylvania. It is therefore considered by the court that the judgment of the circuit court of Richmond be reversed and annulled, and that the defendants in error do pay to the plaintiff in error his costs expended in the prosecution of his writ of error here. And the cause is remanded to the circuit court of the city of Richmond, with instructions to reverse the judgment of the county court of Pittsylvania, with costs, to set aside the issues made upon the pleas of discharge in bankruptcy filed by the defendants severally, and award a venire facias de novo to try the cause again, either at its own bar or in such court as it may be deemed proper to remove the cause; and upon such trial the parties shall be confined to the issue which was made upon the record, and tried at the first trial before the circuit court of Pittsylvania county; and if the defendants shall again offer their pleas of discharge in bankruptcy, or any pleas of new matter of defence, the same shall be rejected, unless the new matter of defence pleaded shall have arisen subsequent to the order of the circuit court of Pittsylvania county granting a new trial; which new matter, if any, they may be allowed to plead, if in form and substance it be matter proper and sufficient to be pleaded post darrein continuance, in bar of the plaintiff’s action; and further to proceed with the cause in conformity with this order and the opinion filed with the record.

Judgment reversed.  