and third, the debt of B. The proceeds of sale | other for $38.56, both bearing date the 27th satisfied the debts of E and C, and of N, but there of July 1843, and payable on demand. These was nothing left to be applied to the debt of B, bonds were secured by a deed of trust on except the proceeds of the personal property. At real and personal estate, and were assigned the time of the assignment the debt of D was con- to Barclay by Mathews, Paxton & Co. sidered good, but he seems to have had no property except what was embraced in the deed of 536 trust. In 1860, the administrator of B filed his bill against the administrator and heirs of W, to recover W's proportion of the said bonds assigned

in the cause, claiming to be a judgment | administrator and heirs of Hugh Wilson, creditor of Deem; and in the progress of deceased. It appears that upon the disthe cause he obtained a decree. Various solution of the firm of Mathews, orders and decrees were made in the suit; 539 *Paxton & Co., in the year 1843, of by one of which, made in 1849, the land which plaintiff's testator and defendand personal property was sold in 1850, the ants' intestate were members, two bonds personalty for $26.50. On the 21st of May amounting in the aggregate to $1,038.56, 1851, a final decree was entered, and the with interest thereon from their respective money was distributed, first, to the payment dates, were assigned to plaintiff's testator, of the debts due to Henry Erskine; second, as a part of the capital stock invested by the debts due to North; and third, to the him in said partnership. These bonds were debt due Mathews, Paxton & Co. The two never collected, as is claimed, in consefirst debts were paid; but nothing was paid quence of the insolvency of the obligor; to Mathews, Paxton & Co., except the pro- and this suit was brought to recover the ceeds of the personal estate. share or proportion for which the estate of Hugh Wilson is responsible.

In 1848 John Echols was employed by Barclay as counsel to attend to the collec- I do not deem it necessary to consider the tion of the bonds transferred to him by question so elaborately discussed at the bar, Mathews, Paxton & Co. Among them was of the effect of the statute of limitation the debt of Deem. He says that when he upon the plaintiff's right of recovery. In came to collect this debt, he found it neces- my view of the case, the want of due dilsary to institute a chancery suit in Green-igence, on the part of Barclay, in enforcing brier county, there having been a deed of the trust deeds given to secure the debts trust to secure the debt, and there being assigned to him, and the long delay of various other encumbrances on the property. his representative before instituting this The result of the suit and the sale was, that suit, are sufficient, of themselves, to defeat the property sold for barely enough to this claim.

pay the encumbrances which were 538 *prior to Barclay's for this debt. He received in January 1851, twenty-five dollars from the trustee in the deed, from the proceeds of the sale of the personal property of Deem; and that was all he ever received on the debt, except what was paid by Mathews.

It appears certain that Deem was regarded as insolvent as early as 1847, and that from 1842 he had no property but that conveyed in the deeds of trust; several of the judgments against him were rendered as early as March and May 1830.

In September 1860, there was a decree for an account, and the cause came on to be finally heard on the 24th of April 1868, when the commissioner having reported the fourth of Deem's debt to be $611.12%, of which $258.13% was principal, the court made a decree in favor of the plaintiff against Wilson's administrator for that amount, with interest on the principal from the 12th of April 1868, till paid, and the costs. And Wilson's administrator thereupon obtained an appeal to the District court of Appeals at Charlottesville, and the cause was afterwards transferred to this court.

Upon the suggestion of the judges, the record of the case of Erskine & others v. Deem & als., was brought up by consent; but the counsel for the appellee, after examining the record, withdrew his consent to its being considered a part of this record, and it is not in the possession of the reporter, though it is referred to in the opinion of the judge.

The bonds in question were assigned to Barclay in March 1843. He retained them in his possession until the year 1848, and then, for the first time, placed them in the hands of an attorney for collection, along with other papers relating to the concern of Mathews, Paxton & Co. The attorney states, he found it necessary to institute a suit in chancery in consequence of the various encumbrances upon the property of Deem, the obligor in the bonds. This is no doubt a mistake; as at that time the suit of Erskine & Caperton was pending. That suit was brought in 1843; the object was to enforce the liens of various judgments against the real estate of Deem. Although Barclay was made a party to this suit in the beginning, it does not appear that he ever answered the bill, or manifested the slightest interest in the conduct of the cause. the October term 1843, a decree was rendered for the sale of part of Deem's real estate. This decree was, however, never executed; nor was any other step taken in the case, until the year 1849. *At the October term in that year, another decree rendered for the sale of all the real estate belonging to Deem; and directing proceeds of sale to be applied-first, to the judgments in favor of Erskine & Caperton; second, to the North judgments; and third, to the debt due to Barclay. The sale was made in 1850; and confirmed in the year 1851. It will thus be seen that the suit was permitted to remain seven years on the docket, without the slightest attempt on the part of Barclay to enforce the sale, either under the trust deeds, or the decrees of the court.

540

was

At

In the meantime, it is highly probable, the lands were deteriorating in value, while the interest was accumulating upon the debts having priority over those secured by These deeds embraced sevthe trust deeds. eral tracts of lands, upon one of which was

facts.

a hotel with its appurtenances, and also a [igence. In the present case there is a manlarge quantity of personal property of con- ifest omission to establish these important siderable value. There were also two other tracts not included in the deeds, but sub-542 ject to the lien of the judgments. It does not appear what became of the personal property. It was probably consumed by the family, or sold and applied in discharge of other debts.

Although the Chancery court had taken jurisdiction over the real estate of Deem, there was nothing to prevent a sale of the personal effects under the trust deeds. These deeds were executed in July 1842, and the debts assigned in March following. By the exercise of the least diligence in enforcing a sale of the personal property, there cannot be a question but that Barclay would have realized the greater part, if not the whole amount, of his claim.

*It will be borne in mind, that the assignment was made in the year 1843. If at that time the obligor was insolvent, as is claimed, the assignors were immediately liable upon the contract of assignment. It was the duty of Barclay then to institute his suit against his co-partners, or reasonably to notify them of his inability to collect the debt. Let it be conceded, however, that Deem's insolvency did not appear until the sale of his real estate in 1850. This suit was not brought until the year 1860–nearly ten years after the sale, and seventeen years after the assignment. After this long delay it is very doubtful, to say the least, whether there can now be a safe determination of the matters in conThis is the aspect of the case as presented troversy. The danger of injustice, from by the record brought here at the suggestion loss of information and evidence, is great. of the court, and filed in the cause with the And what is more material, the remedy of consent of counsel. In as much, however, the defendants over against others is greatly as that consent was given before the record impaired, if not wholly destroyed, by death was seen, and as the counsel for the appel- and insolvencies. Under such circumlee seems to apprehend that some injus- stances, a court of equity should refuse to 541 tice may thereby be done his *client, afford a remedy, though no statute of limiit is proper to consider the case very tations may directly affect the right of rebriefly without reference to the facts discovery. In Wagner v. Baird, 7 How. U. S. closed by that record. R. 234, 259, Mr. Justice Grier, quoting the observation of Lord Camden, that nothing but conscience, good faith and reasonable diligence, can call this court into activity, used this language: "Length of time necessarily obscures all human evidence and deprives parties of the means of ascertaining the nature of original transactions; it operates by way of presumption in favor of the party in possession.' Doggett v. Helms, 17 Gratt. 96, and cases there cited; Tazewell's ex'or v. Whittle's adm'r, 13 Gratt. 329.

After this long delay, it must be conceded that the laboring oar is upon the plaintiff. It is incumbent upon him to establish clearly all the facts necessary to fix the liability of the defendants. It was his duty-not that of the defendants-to show the quantity and value of all the property embraced in the deeds, and that no portion of the debts could have been made from a sale of that property. None of the witnesses examined by him, tell us anything in respect to the personal property, or what became of it. It is true that Mathews, one of the partners, seems to have been satisfied of the insolvency of Deem, and to have paid Barclay his share or proportion of the bonds; but it is equally true that the other partners were not so easily satisfied, and have as steadily refused or declined to assume any such liability.

In Deane v. Scholfield, 6 Leigh, 386, Judge Cabell, in discussing the duties and obligations of assignees, said: "If the assignee attempts to rest it on the ground that he was under no obligation to pursue the maker, he must equally fail; for even admitting that he was under no obligation to The testimony of the other witnesses ex- pursue him, then he should immediately amined by plaintiff, was given nearly have demanded the money from the twenty-five years after the date of the as- 543 assignor, *with an offer to return the signment, and the execution of the trust note, that the assignor might take deeds, and relates to events and transactions measures to recover from the maker. It with which neither was personally ac- would be against all justice that the asquainted. It would be easy to show that all signee of a note should seek to subject the this evidence is wholly insufficient to estab- assignor to its payment, after thus having lish plaintiff's case. It is clear, as a gen-held it up for years without any notification eral rule, the assignee must sue the maker of his intention to hold him liable, and or obligor before he can resort to the as- without offering him the means of saving signor. This rule is varied where it is per- himself by suing the maker." fectly manifest a suit would be wholly unavailing. It is equally clear, that where the debt which has been assigned, is secured by a specific lien, it is the duty of the assignee diligently to enforce such lien before he can have any recourse against the assignor. If he fails to pursue this course, it is incumbent upon him clearly to show that the security was worthless, and that no loss or damage has resulted from his lack of dil

These observations strongly apply to this case, and present controlling reasons for the rejection of the claim asserted by this bill. I think the chancellor erred in sustaining it; that the decree for this cause should be reversed and the bill dismissed.

The other judges concurred in the opinion of Staples, J.

The decree was as follows:

The court is of opinion, for reasons stated

in writing and filed with the record, that
the said decree is erroneous. Therefore, it 545
is decreed and ordered, that the same be re-
versed and annulled; and that the appellee,
James H. Paxton, executor of Alexander
T. Barclay, deceased, out of the assets of
his testator in his hands to be administered,
do pay unto the appellant his costs by him
expended in the prosecution of his appeal
aforesaid here. And this court proceeding
to pronounce such decree as the said Circuit
court ought to have rendered: it is further
decreed and ordered, that the plaintiff's bill
be dismissed, and out of the assets of the
testator in his hands to be administered,
that he do pay unto the defendants their
costs by them about their defence in the
said Circuit court expended; which is or-
dered to be certified to the said Circuit court
of Rockbridge county.

544

*Markham v. Boyd.

August Term, 1872, Staunton.

Record in Chancery Suit-Presumed Correct.*-Upon a bill for a new trial of an action at law, on the ground of after-discovered evidence, the record of the case at law not showing what evidence was

before the jury, or what facts were proved on the trial, and the chancery record not giving that information; and the same judge who tried the cause at law, having dissolved the injunction and dismissed the bill, the appellate court has not the materials to enable them to review the decree; but must presume it is correct.

claimed the same under John Milner, who purchased of *Wm. B. Banks; and Wm. B. Banks claimed to have purchased of Henry Banks. At the trial Markham offered in evidence the copy of the deed from Henry Banks to Wm. B. Banks, which was upon the records of the County court of Botetourt; but it was objected to by Boyd, upon the ground that it had not been properly certified and recorded; and the court sustained the objection. and excluded the evidence. Markham was, therefore, unable to show any title to the land. Since the judgment in the ejectment cause-and indeed, since the filing of the original and supplemental bills (which had stated other after-discovered evidence), the original deed from Henry Banks to Wm. B. Banks had been accidentally discovered, and Markham, as he insists, is now able to show a perfect title to the land. This deed bears date the 11th of October 1827.

The bill also alleges that since the trial, an agreement between John Milner and John Scott, who was in possession of the land under one Tebbs, under whom Boyd claimed, had been discovered, which would have had an important bearing upon the time and fact of Milner's taking possession

of the land.

Boyd demurred to the original, the amended and the supplemental bills, and also answered. He claimed title under two grants from the commonwealth, one to Abraham Dooly for four hundred and twenty-five acres of land, dated the 1st of March 1781, which covered a part of the In February 1855, William W. Boyd land recovered in the ejectment suit; and brought an action of ejectment in the Cir- the other to John Beale, dated the 22d of cuit court of Botetourt, against Jesse E. September 1797, for seventeen thousand five Markham, to recover a tract of four hundred hundred acres, including the whole of the and twenty-five acres of land, on Jennings recovered land. This title of Beale aftercreek, in said county. The case was tried wards came by regular conveyances to Wm. in June 1857, when there was a verdict for P. Tebbs; and there was evidence introthe plaintiff. Markham thereupon moved duced of actual possession of the land by the court for a new trial; but the court Tebbs by himself and his tenants, the last overruled the motion and rendered a judg-of whom was John Scott, from about 1805 ment according to the verdict. No exception was taken to the refusal of the court to grant a new trial; and therefore, the record did not show what evidence had been introduced in the trial of the cause.

In January 1858, Jesse E. Markham filed his bill in the same court, against Wm. W. Boyd, in which he prayed for an injunction to the judgment in the ejectment case, and for a new trial of the cause, on the ground

of after-discovered evidence. He afterwards filed an amended, and then a supplemental, bill. The case made by the bills was, that the land mentioned in the verdict was part of a thousand acres granted to Henry Banks on the 3d of August 1786; and Markham

*Record in Chancery Suit.-In Adams v. Hubbard, 25 Gratt. 136, the court said that the doctrine laid down in the principal case equally applies to awards as to verdicts, and was decisive of the case at bar. Records Presumed Correct.-See Neale v. Farinholt, 79 Va. 59, where the principal case is cited among others, as authority on this point. See Wynne V. Newman, 75 Va. 818.

down to about 1834 or '35, and possession by Milner, and those claiming under him, from

546

that time; his possession having *been acquired by his agreement with Scott, who agreed to rent from him, upon condition that he would hold him Tebbs' heirs; and who left the land in 1836. harmless from any claim against him by Though the agreement was not before the jury, there was a receipt in the handwriting of Scott to the same effect as the agreement.

Beside many deeds and other documents taken from the records of the courts of Botetourt and Rockbridge counties, there were a number of witnesses examined in

this case by both the parties, as to the possession of the land by those under whom they respectively claimed, which was not introduced on the trial of the ejectment.

The cause came on to be finally heard on the 12th of October 1858, when the court was of opinion that the discovery by the plaintiff of the original deeds, and the written contract in the bills and proceedings mentioned, did not entitle him to relief in

equity. It was, therefore, decreed that the | This court, therefore, not having before it injunction be dissolved, and that the original and amended bills be dismissed with 548 costs. From this decree Markham obtained an appeal to the Supreme court of Appeals at Lewisburg; and it was afterwards transferred to this court.

the evidence which was before the jury in the ejectment case, cannot *possibly arrive at any satisfactory conclusion as to the relevancy or strength of the newly discovered testimony.

The judge who presided at the trial of the ejectment suit, and who entered the final

Barksdale, Smith and Elder, for the ap- decree dissolving the injunction and dispellant.

Pendleton, for the appellee.

missing the bills in this case, is under the circumstances alone competent to decide whether the newly discovered evidence, if it had been before the jury, ought to have CHRISTIAN, J. delivered the opinion of produced a different verdict. He has very

the court.

clearly and decidedly expressed his opinion, in his decree dissolving the injunction. He says, "Assuming that the plaintiff has shown due diligence in preparing for his defence at law, it does not appear that the case before the jury would have been materially changed if the said original deed had been in the possession of the plaintiff at the time of the trial."

The power of a court to set aside a verdict of a jury, and grant a new trial, upon the ground of newly discovered testimony, is one that is exercised rarely and with great caution. It will not be exercised but under very special circumstances. The party asking its exercise must show that he was ignorant of the existence of the evidence relied upon; that he was guiltless of negligence; and that the new evidence, if 547 it had been before *the jury, ought to have produced a different verdict. The newly discovered evidence must not only be material in its objects, and not merely cumulative, corroborative and collateral, but it must be such as ought to be decisive, and productive on another trial of an opposite result on the merits of the case. These principles are well settled by the decisions of this court. In the case before us it appears that the appellee, Boyd, had instituted his action of ejectment against the appellant, Markham, in the Circuit court of Botetourt; and that at the June term of that court, in the year 1857, a verdict was found for the plaintiff (the appellee here) for the land in the declaration mentioned. A motion was submitted for a new trial, which was overruled, and a judgment exception was taken to the judgment of the stantially proved at the trial. The receipt court refusing a new trial, and consequently neither the evidence nor the facts proved

entered in accordance with the verdict. No

were certified.

In August 1859, Markham filed his bill, praying an injunction to said judgment, and praying that a new trial might be awarded, upon the ground that he had discovered, since the trial, material evidence which could not have been produced by the utmost diligence at the trial, and which was accidentally discovered afterwards. He found it necessary to file an amended bill, and a supplemental bill, which set out more distinctly the character and weight of the evidence, and the manner in which it was discovered. Neither of these bills profess to set out the evidence which was heard before the jury on the trial of the ejectment. An injunction was awarded; and upon a motion to dissolve the injunction, before the same judge who tried the ejectment case, there was much evidence submitted on both sides; but it is not pretended that all the evidence which was heard before the jury is in the record of the injunction suit.

As to that portion of the land in controversy included in the Dooly patent, under ent being older than the grant to Henry which the defendant Boyd claims (this patBanks with which the plaintiff seeks to connect himself), the said deed had no tendency to prove a better title in Markham. It appears that the defendant at the trial of the action of ejectment was permitted to show color of title; that he relied upon his adverse possession for a sufficient length of time, as he contended, to protect him under the statute of limitation; and upon these points parties were fully heard at law. It does not appear that upon another trial the disCovery of said deed would enable the plaintiff to make out a stronger case upon another trial. alleged to have been discovered since the As to the written agreement also trial, the court says, "The written contract between Milner and Scott, in the bill mentioned, proves nothing that was not sub

which was read in evidence, proves the same contract, in substance, which was proved by the written agreement." Such is the opinion of the court below declared

549

the

in its decree.

*The deed and the written agreement referred to in the decree, constitute newly discovered evidence upon which the appellant based his application to a court of equity for a new trial. Can this court say that the decree of the court below was erroneous in refusing to award a new trial, when the evidence which was before the jury in the ejectment case is not before this court? We certainly cannot do this in face of the fact, that the judge who heard all the evidence in the ejectment case, asserts in his decree, that the newly discovered testimony (of the relevancy and strength of which we can form no opinion), could not have had the effect to change the verdict of the jury. The decree of the Circuit court must, therefore, be affirmed.

Decree affirmed.