Powell v. Manson

Full title: POWELL & WIFE v. MANSON.

Court: Supreme Court of Virginia

Date published: Apr 17, 1872

63 Va. 177 (Va. 1872)

Opinion

04-17-1872

POWELL & WIFE v. MANSON.

Keiley and Lyons, for the appellants, and Steger for the appellee.

STAPLES, J.

1. Upon the trial of an issue out of chancery, depositions taken in the cause in the chancery court are not to be read to the jury, unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial.

2. The positive denials or statements of an answer, responsive to the bill, cannot be overthrown by the admissions, evasions and contradictions, if any, which may be found in the answer.

3. The plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit; nor can he do so by proving, directly or indirectly, that the answer is false in one respect, or several respects. The only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by that amount of evidence which is required by the rule in chancery.

4. Upon the trial of an issue out of chancery, the bill is not proof of its allegations, except so far as these allegations are admitted to be true by the answer. And the answer is not proof of the allegations therein contained, unless the allegations in the answer, as to facts, be positive, and responsive to some allegation of the bill. And to be responsive, such allegations of the answer must not be either evasive or contradictory.

5. On the trial of an issue out of chancery, the rule of evidence is the same as on the hearing in the Chancery court; and the allegations of the answer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness and corroborating circumstances.

6. Upon a motion for a new trial of an issue out of chancery, on the ground that the verdict is contrary to law and the evidence, the judge, overruling the motion, refuses to certify the facts proved, because the testimony was conflicting, but all the oral testimony is certified. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice.

7. In such a case, although there may have been a misdirection by the court, or evidence may have been improperly rejected, a new trial will not be granted, if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected.

8. Pending a suit in equity against a female defendant, to recover a debt alleged to be due by her, she marries, and the husband is made a party defendant. There was an-nuptial settlement, by which all the wife's property was conveyed in trust for her separate use, and she renounced all interest in that of the husband. The husband is still liable for the debts of the wife contracted before marriage, and the decree may be against both of them.

This is the sequel of the cases of Magill v. Manson and Same v. Manson & al, which are reported in 20 Gratt. 527. When the causes went back to the Chancery court of Richmond, that court, in pursuance of the decree of this court, made an order directing a jury to be summoned to try at its bar the issue--" Whether the said Elizabeth Magill was or was not influenced, in giving the bond for twenty-six hundred and thirty-six dollars, in the proceedings mentioned, to said Manson, by any misrepresentation of fact, fraudulent or otherwise, made by the said Manson, to the said Magill, or to John F. Allen."

At the June term, 1871, of the court, the marriage of Elizabeth Magill with William T. Powell was suggested, and on their motion it was ordered that the first of these causes do henceforth proceed in their names as plaintiffs, and the last in their names as defendants. It appears that these parties had made a deed before their marriage, by which all the property, real and personal, of Mrs. Magill, was conveyed to a trustee for her separate use, free from all claim of her intended husband, or liability for his debts or contracts; and she on her part relinquished all claim for dower and distribution in his estate.

At the same term of the court, the case being ready for trial, but before the jury were sworn, the counsel for Powell and wife moved the court to enter the following order in the cause: " It is ordered that, upon the trial of the issue in this case, all the testimony which was heard by the Court of Chancery may be used before the jury, with leave to either party to adduce such additional testimony as he may deem proper, subject to the control of the court."

But the court overruled this motion, and in lieu of said order entered the following:

" It is ordered that, upon the trial of the issue in these causes, the bills, answers, exhibits, and depositions of such witnesses as are dead or cannot attend, may be read in evidence before the jury, with leave to either party to introduce such other evidence as he may deem proper, subject to the control of the court."

To which opinion of the court, rejecting the one and entering the other order, Powell and wife excepted. This is their first exception.

In the progress of the trial, and after all the evidence had been introduced, the plaintiffs, Powell and wife, moved the court to instruct the jury as follows:

" Instructs the jury that they are the exclusive judges of the weight of the evidence in this cause; that the plaintiffs, Powell and wife, hold the affirmative, and must prove it to the satisfaction of the jury, or they must find for the defendant; and that in considering the case, they will take the bills, answers, exhibits and testimony of witnesses into their consideration, and decide upon the whole, allowing to the answers, when responsive to the bills, and explicitly and positively denying the allegations of the bills, conclusive force, unless such answers be overthrown by the testimony of two witnesses, or one witness with corroborating circumstances, or by the admissions, evasions and contradictions, if any, which may be found in the answer of any of them."

But the court refused to give said instructions, and in lieu thereof gave the following:

" The court instructs the jury that the plaintiffs, Powell and wife, hold the affirmative of the issue in this cause, and the said plaintiffs must prove to the satisfaction of the jury that the said Elizabeth Magill (now Powell) was influenced in giving the bond for twenty-six hundred and thirty-six dollars, in the proceedings mentioned, to the said defendant, Manson, by some misrepresentation of fact, fraudulent or otherwise, made by the said Manson to the said Magill, or to John F. Allen, or the jury must find for the defendant."

" And the jury are further instructed, that neither the original and amended and supplemental bills of the said Magill against Manson, nor the bill of the said Manson against Magill, are to be regarded as proofs of the allegations therein contained, except so far as they may contain allegations admitted to be true by the answer to such bill. And the answers of said Manson and said Magill, respectively, are not to be regarded as proofs of the allegations therein contained, unless the allegations in the answers, respectively, as to facts, be positive and responsive to some allegation or allegations of the bill in the case in which such answer is filed; and when the answer is thus responsive, it is to be regarded as proof in regard to such allegations; and to be responsive, such allegations of the answer must not be either evasive or contradictory."

" And in deciding the case, the jury will take into their consideration so much of said answers, respectively, as they shall find responsive as aforesaid, the exhibits and the testimony of witnesses which has been adduced before them, as proofs in the cause; and in weighing the testimony, they shall allow to the answers, respectively, where they are responsive as aforesaid, conclusive force as to the allegations to which they are responsive, unless overthrown by the testimony of two witnesses, or one witness and corroborating circumstances."

" And the jury are further instructed that, subject to the qualification in regard to the force and effect of a responsive answer as above indicated, they are the exclusive judges of the weight, effect and sufficiency of the evidence."

To the refusal of the court to give the said instruction asked for by the plaintiffs, and to the ruling of the court giving the instruction in lieu thereof, the plaintiffs excepted, and inserted in their exception all the oral testimony introduced. This is their second exception.

The plaintiffs then moved the court to modify the instruction given by adding the following:

" But so much of the answer of either party as makes in favor of the respondent may be disproved by its context, or by extrinsic evidence; and on the other hand, may be sustained by corroborative testimony." But the court refused to give the instruction, and the plaintiffs again excepted. This is their third exception.

The plantiffs then moved the court to instruct the jury as follows: " The court instructs the jury, that in the trial of this cause, the jury, in estimating the weight of the allegations of the bills and answers, are not bound by the rule of chancery pleading, which prescribes that the allegations of an answer denying those of the bill must be taken as true unless contradicted by two witnesses, or one witness and corroborating circumstances." But the court refused to give the instruction; and the plaintiffs again excepted. This is their fourth exception.

The jury then rendered the following verdict: We of the jury find that Elizabeth Magill, the plaintiff, was not influenced by any misrepresentation of fact, fraudulent, or otherwise, made by the defendant Manson to the said Magill, or to John F. Allen, in executing the bond of twenty-six hundred and thirty-six dollars mentioned in the proceedings." And thereupon, the plaintiffs, Powell and wife, moved the court to set aside the verdict, and grant them a new trial, upon the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and the plaintiffs again excepted. And the court certifies that the plaintiffs' second exception, which is made a part of this bill, contains all the evidence adduced upon the trial; the court declining to certify the facts because of conflict in the testimony. As this is a mere question of fact, it is deemed unnecessary to state the evidence.

The causes came on to be finally heard upon the papers formerly read and the verdict of the jury on the issue ordered in the first of said causes. On consideration whereof, the court approving said verdict, decreed that the plaintiff in the second of these causes, do recover of William T. Powell, and Elizabeth his wife, the plaintiffs in the first and defendants in the second of said causes, the sum of twenty-six hundred and thirty-six dollars, with legal interest thereon, at the rate of six per centum per annum, from the 13th of May 1862 until paid, and his costs in these causes in this court, subject to a credit of two hundred and eight dollars, the costs recovered by the said Elizabeth Powell in the said causes in the Court of Appeals. And it appearing that the debt of Sauer to Mrs. Powell was due, it was decreed that he, within sixty days, should deposit it, with its interest, in the State Bank of Virginia, to the credit of these causes; and when such deposit was made, Manson was authorized to check upon the fund for the sum, with its interest, decreed to him, and his costs, subject to the credit aforesaid. And when Sauer had filed in the papers a certificate of his deposit, Powell and wife were directed to deliver to him his bonds given for the debt.

And it appearing from the deed of marriage settlement, made before the marriage, between Powell and wife, that the balance of said fund was the separate estate of Mrs. Powell, it was decreed that said Elizabeth Powell, or James Lyons, her trustee and counsel, be authorized to check in her favor for said balance.

From this decree Powell and wife applied to this court for an appeal; which was allowed.

The case was elaborately argued in printed notes by Keiley and Lyons, for the appellants, and Steger for the appellee.

For the appellants it was insisted: 1st, That the court erred in its first ruling, because it was the duty of the court to have ordered all the papers which had been read upon the hearing of the cause in the Chancery court, and in the Court of Appeals, to be read upon the trial before the jury. That when the Court of Chancery directs an issue, it will make such an order as will secure a fair trial, and prevent fraud and surprise, directing all proper admissions to be made by either party, and all papers which had been read on the hearing to be read on the trial; and if such an order does not form part of the original order directing the issue, it may be obtained afterwards on motion. And for this rule, and in illustration of it, the counsel referred to 2 Daniels Ch. Pr., 1235, 1296; Gordon v. Gordon, 1 Swanst. R. 166; McCall v. Graham, 1 Hen. & Mun. 13; Ford v. Gardner, 1 Id. 71; Apthorpe v. Comstock, 2 Paige Ch. R. 482; Doe ex dem. of Lloyd v. Evans, 3 Car. & Payne R. 219; Gresley's Eq. Evi. 401 et seq; 1 Beasley N. J. R. 108, 114; 3 Greenl. Evi. § 326, 328, 341, 343, 344; Ringualt v. Ahl, 36 Penn. R. 336; Gresley's Eq. Evi. 528; Dunn v. Dunn, 11 Mich. R. 284; 2 Daniel's Ch. R. 1298, and cases cited in notes x, y, z, a, b; Mettert's administrator v. Hagan, 18 Gratt. 231; 1 Greenl. Evi. § 522; 2 Cowen & Hill's notes to Phillip's Evi., note 692, p. 946--70; 2 Daniel's Ch. Pr. 1069, note 1, 1070, 1073 note 1; 1 Id. 1302.

The counsel for the appellee replied, that whilst in directing an issue to satisfy his conscience, the chancellor had a discretion in directing what papers should be read to the jury, it was a legal discretion, and he could not put before the jury either pleadings or evidence which had no relevancy to the special question which the jury were to try. And in this case much the larger portion of the testimony in the cause related to matters with which the jury had nothing to do. That Mrs. Magill, Dr. Manson, and John F. Allen, were the only parties who could know anything pertinent to the subject of the issue; and there were obvious reasons why they should be examined ore tenus, if any party desired it; and they were certainly within reach of the court. The counsel referred to Gresley Eq. Evi. § 3, p. 523 to 527, 2d edi.; Brockenbrough's ex'ors v. Spindle, 17 Gratt. 21, 27, 28, opinion of Moncure, President; Ringualt v. Ahl, 36 Penn. R. 336; Marston v. Brackett, 9 New Hamp. R. 336; Burwell v. Corbin, 1 Rand. 131, 154; Gordon v. Gordon, 1 Swanst. R. 166; Apthorpe v. Comstock, 2 Paige, Ch. R. 482; Grigsby v. Weaver, 5 Leigh 197; Butts v. Blunt, 1 Rand, 255; Douglas v. McChesney, 2 Id. 109; Palmer v. Lord Aylesbury, 15 Ves. R. 176; 2 Daniel's Ch. Pr., 4 edi. 1117 et seq.; Black v. Lamb, 1 Beasley's N. J. R. 108, 114; 3 Greenl. Ev. S. 337, 339; 3 Phillip's Evi. (Cowen & Hills' notes) p. 934, note 656, 1101-2; 1 Phillip's Evi. p. 363.

2d, The counsel for the appellants insisted, that the court erred in refusing to give the first instruction asked for by the plaintiffs, and erred still more in the instruction that was given. That by refusing to give the instruction, the court affirmed that the answers of the defendant could not be overthrown by admissions, evasions and contradictions to be found in them; which was subversive of the law of evidence, as the best mode of destroying the testimony of a witness, or the answer of a defendant, is to array his statements against each other. And by the instruction given, if Manson in one part of his answer has made admissions or denials which were responsive to the bill, and in another part of the same answer, he has made assertions directly in conflict with the previous statements, the jury must believe the first and disregard the last. They insisted that the instruction ignores the most important office of a bill as proof; that is as an admission. The facts alleged in a bill in favor of a defendant are admissions, and need not be proved aliunde; and this, whether true or not. 1 Daniel Ch. Pr. 838; Ives v. Medcalfe, 1 Atk. R. 63; Robbins v. Ruter, 24 Illin. R. 387. And so an answer is a confession, and is semper et ubique evidence against the respondent. 1 Phillip's Evi. 359, 220, 69, and cases cited; Hunter v. Jones, 6 Rand. 541; Bartlett v. Gale, 4 Paige Ch. R. 503; Adams v. Shelby, 10. Alb. R. 478; 1 Daniel Ch. Pr. 839. And they denied that an answer responsive to the bill could only be overthrown by two witnesses or one witness and corroborating circumstances. They referred to Lyons v. Miller, 6 Gratt. 427; Fant v. Miller & Mayhew, 17 Gratt. 187, 211; East India Company v. Donald, 9 Ves. R. 275; Clark's ex'ors v. Van Riemsdick, 9 Cranch R. 158; Bowerman v. Sybourn, 7 T. R. 2; Gresley's Eq. Evi., part 3, ch. 1, pp. 322, 323.

The counsel for the appellees replied, that the instruction asked by the plaintiffs, in the form in which it was presented, was not law, and was calculated to mislead the jury. It asks that the bills shall be regarded as evidence. For this there is no warrant in law, except that an admission in the bill, like any other admission, is evidence against the plaintiff. Gresley Eq. Evi. 426. But there is no pretence that the bills in this case contained any such admission, or that they were offered for that purpose.

Again, the instruction asks the court to say broadly to the jury, that the answer may be overthrown by the admissions, evasions and contradictions which may be found in it. The admissions in an answer are always evidence against the defendant, and may destroy the force of its denials. But that must depend upon the character of the admission, and its pertinency to the issue involved. Whether the admission would or would not affect the force of the answer as evidence depends, therefore, upon the particular facts of each case, and no general rule can be laid down on the subject. It would have been wrong, therefore, for the court to have instructed the jury in this case, as asked by the plaintiffs, as it would have left the jury to infer that any admission in the answer might overthrow its weight as evidence for the defendant, and thus mislead them. But in fact, the instruction given by the court that the positive allegations in the answers responsive to the allegations of the bills, are to be regarded as proof of such allegations, & c., responds completely to the objection. The court does not say that the answer is evidence only for the defendant.

And so evasions and contradictions do not always have the effect to destroy the force of an answer as evidence. Nor has it ever been held as destroying the force and weight of other parts of the answer directly responsive to the bill.

He insisted further, that the instructions given by the court go fully as far as the plaintiff had a right to ask. After announcing the well settled rule as to an answer responsive to the bill, it adds, to be responsive such allegations must not be either evasive or contradictory. This meets every requirement of the instruction asked for by the plaintiffs, and in terms not objectionable, and not calculated to mislead the jury.

3d, The counsel for the plaintiffs insisted that the addition to the first instruction given by the court, should have been made, it being in the very language employed by the judge who delivered the opinion in the case of Lyons v. Miller, 6. Gratt. 427, 439.

The counsel for the appellee insisted that the instruction was vague and indefinite, and calculated to mislead the jury; and in fact it means precisely what the court had told the jury in plain and unambiguous terms.

4th, The counsel for the appellants insisted that the court erred in refusing to instruct the jury, as asked by the plaintiffs, that in estimating the weight of the bills and the answers, they are not bound by the rule of chancery practice, which requires an answer to be taken as true, unless contradicted by two witnesses, or one witness and corroborating circumstances. They referred to the language of the court in Lyons v. Miller, 6 Gratt. 427, 439; and to Fant v. Miller & Mayhew, 17 Gratt. 187, 211.

The counsel for the appellee replied, that in Lyons v. Miller, the court recognized the rule; and the appellants admitted it in the first instruction asked by them. And he insisted that it was of necessity that, on the trial of an issue to satisfy the conscience of the chancellor, the rules of evidence must be the same as that which governs the chancellor when he is considering whether the verdict of the jury does satisfy his conscience. If there is but one witness to disprove an answer, it is error in the court to direct an issue? Then, if a verdict is rendered on the testimony of that one witness, without corroborating circumstances, could the chancellor decree upon the verdict, when it was error to direct the issue? He referred to Dodge v. Griswold, 12 New Hamp. R. 573; Kincheloe v. Kincheloe, 11 Leigh 393; Thornton v. Gordon, 2 Rob. R. 719; Lancastor's ad'mrs v. Ward, 1 Overton's R. 430; Wise v. Lamb, 9 Gratt. 294; Smith v. Betty & als., 11 Id. 752.

5th, The counsel for the appellants insisted that the court erred in overruling the motion for a new trial, on the ground that the verdict was contrary to the law and the evidence. The errors in law relied on are those already considered. The other ground is a question of fact, and the argument need not be reported.

6th, They insisted that it was error to decree personally against the husband, Wm. T. Powell. That the debt, if a debt at all, was the debt of Mrs. Magill, a feme sole, and by deed of marriage settlement, made before the marriage, all her property was vested in a trustee for her, as her separate estate, to be used and controlled by her as if she was a feme sole; and she had relinquished all right to dower and distribution in the estate of her husband, the said Powell; and the object of the suit of Manson was to enforce the lien on her property, which had been acquired by the attachment. And although Powell was made a party to the suit for conformity, he was not thereby in anywise made liable for the debt which was due by his wife before the marriage. Or if he could be made liable at all, it could only be after the wife's separate estate was exhausted.

The counsel for the appellee replied, that a husband cannot relieve himself from responsibility for his wife's debts, imposed upon him by law, by showing that there is a private arrangement between himself and his wife, whereby the property of the wife is settled upon her, and she renounces all claim to dower and distribution in his estate. The law imposed the responsibility upon the husband to pay his wife's debts contracted dum sola, whether she did or did not bring him any property, and he cannot relieve himself from this legal responsibility by any arrangement between them; nor does he attempt to do so by the marriage contract in this case.

STAPLES, J.

An issue out of chancery is directed, in doubtful matters of fact, to satisfy the conscience of the court. It is not adopted as a substitute for omitted evidence, but in cases of doubt and difficulty produced by a conflict of testimony. In such cases, the chancellor considers the purposes of justice will be better attained by an investigation before a jury, where the witnesses may be seen by the triers of the fact, their capacity, deportment, accuracy and sources of information, subjected to the tests of a public cross-examination, and the whole merits of the controversy more satisfactorily investigated, than by an examination on paper in the country. It is, therefore, the rule in most of the American courts, and also in the English courts, not to admit depositions taken in a Chancery court to be read to the jury, unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. This rule has received the sanction of the judges of this court in several cases, and is believed to be the settled practice in Virginia. I think, therefore, the court below committed no error in entering the order set out in plaintiff's first bill of exceptions. Burwell v. Corbin, 1 Rand. 153; Douglas v. McChesney, 2 Rand. 109; Grigsby v. Weaver, 5 Leigh 197; Cartright v. Godfrey, 1 Murphy, R. 422; 2 Daniel Ch. Prac. 741, mar. page.

The second assignment of error is to the refusal of the court to give the instruction set out in plaintiff's second bill of exceptions. This instruction is objectionable in several respects. It is, however, only necessary to notice that part of it which asserts that " an answer positively denying the allegations of the bill may be overthrown by the admissions, evasions and contradictions, if any, which may be found therein." It is sufficient to say that this proposition is in conflict with the rule announced in Fant v. Miller & Mayhew, 17 Gratt. 187. In that case, the court says, " a plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit; nor can he do so by proving, directly or indirectly, that the answer is false in one respect, or in several respects. The only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by that amount of evidence which is required by the rule in chancery."

The instructions actually given by the court in lieu of that asked for by plaintiffs, I think, correctly state the principles of law governing this case. The plaintiffs' counsel, however, proposed the following addition or modification of the instructions given: " But so much of the answer of either party as makes in favor of the respondent, may be disproved by its context, or by extrinsic evidence, and on the other hand, may be sustained by corroborating testimony." The court refused to make this addition, and I think properly. This language is an extract from the opinion of Judge Baldwin in Lyons v. Miller, 6 Gratt. 427. In using it, he had reference exclusively to an answer to a mere technical bill of discovery. It was the enunciation of an abstract proposition of law, having no application to the present case, or to any case of a bill for redress falling within the ordinary jurisdiction of a court of equity.

The court had already instructed the jury that an answer is to be taken as true when responsive, unless contradicted by two witnesses, or one witness with corroborating circumstances. The court was then asked to tell the jury in a general way, that an answer may be " disproved by its context, or by extrinsic evidence." The instruction not only involved a mere abstract proposition of law, which a judge may well refuse, but was well calculated to mislead the jury.

The plaintiffs also asked the court to instruct the jury, they are not bound by the rule of chancery pleading, which prescribes that the allegations of an answer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness with corroborating circumstances. This instruction the court refused to give; and the plaintiffs again excepted.

The question presented by this instruction has never been decided by a court of the last resort in Virginia. In Thornton v. Gordon, 2 Rob. R. 719, Judge Allen said the rule in equity that the answer of a defendant denying the allegations of the bill must be taken as true, unless disproved by two witnesses, or one witness and circumstances, was so well established, the plaintiff could not make his case an exception to it, by disclaiming a discovery from the defendant. This rule is the law of the forum, and all who apply to it for relief must submit to have their causes tried according to its established modes of procedure. It has no application to a mere technical bill of discovery, where no relief is prayed, but the discovery is required to be used on some trial at law; for there the plaintiff has his election to use the answer or not. The principle becomes of importance in those cases alone where an issue of fact is to be tried by the court."

Now it is obvious, that if the defendant is to be deprived of the benefit of this principle, because the issue is to be tried by a jury instead of the court, it is of very little value to him in many cases where its observance is most important to his interests. It is well settled that where the defendant denies in express terms the allegations of the bill, and the plaintiff produces only one witness in support of them, the court will neither make a decree nor send the case to be tried at law, but simply dismiss the bill. If the jury may disregard this rule when the case is before them; if they may find a verdict upon the testimony of a single witness in opposition to the answer, the plaintiff will often succeed upon testimony insufficient to justify even the ordering of an issue. What would a chancellor do with a verdict thus obtained? In this very case, had the instruction been given, and the jury found for the plaintiff, under the ruling of the court, would he have been satisfied with the finding? Upon a motion to set aside the verdict, he would have found himself trammelled by a rule he had instructed the jury they might disregard. In the nature of things the rule of evidence must be the same in each forum. Any other course of proceeding is calculated to produce endless confusion and difficulty.

The next error assigned is the refusal of the court to grant plaintiffs a new trial, upon the ground that the verdict was contrary to law and the evidence. The court refused to certify the facts, in consequence of a conflict of testimony. The bill of exceptions, however, states all the oral evidence adduced at the trial. This court, having before it this evidence, all the depositions and exhibits read at the hearing, is competent to decide whether the purposes of justice require another trial to be had. The rule in such cases is well settled. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected. 2 Dan. Ch. Pr., new edition, page 1124, and cases there cited. In Barker v. Ray, 2 Rus. R. 63, Lord Eldon said: " This court, in granting or refusing new trials, proceeds upon very different principles from those of a court of law, and that it has been ruled over and over again, if on an issue a judge refuse evidence which ought to have been received, or receive evidence which ought to have been rejected, although in that case a court of law would grant a new trial, yet if this court is satisfied the verdict ought not to have been different, it will not grant a new trial merely upon such grounds. See also Hampson v. Hampson, 3 Ves. & Beam R. 41; Brockenbrough's ex'ors v. Spindle, 17 Gratt. 28.

In the present case, looking to the entire record, this court cannot say a different verdict ought to have been rendered--more especially as the chancellor who heard the witnesses is satisfied with the finding. When the case was before us at a previous term, an issue was directed, mainly in consequence of the testimony of John F. Allen, upon whom the plaintiff chiefly relied to establish the charge of fraud. It is their misfortune that this witness, in his examination before the jury, has so explained his previous testimony as to relieve the defendant of the burden of this charge. It may be, as stated in the petition, that the witness exhibited the most manifest bias in favor of the defendant, and, so far as he could, destroyed the effect of his deposition. This fact only establishes the failure of the plaintiff's case, and that this witness' evidence cannot, under any circumstances, be made the basis of a verdict or decree for them. What other testimony have the plaintiffs? Mrs. E. Leary, the sister of the female plaintiff, was examined before the jury. Her statements, however, related almost exclusively to an account of an interview between the witness, Allen, and Mrs. Powell, having but little bearing upon the matters in controversy. The deposition of Mrs. Powell was read at the hearing, but not on the trial before the jury; nor was she examined as a witness--why, the record does not disclose. Having declined to testify when there was the most urgent necessity for a full disclosure of the facts within her knowledge, she certainly cannot claim that the court shall regard her deposition in considering the motion for a new trial. But giving her the full benefit of her testimony, it does not prove the charge of fraud. The deposition is mainly devoted to a statement or narrative of the transactions which led to the execution of the bond. It proves that Mrs. Powell had great confidence in the defendant, Manson; but it does not show, or tend to show, that she executed the bond in controversy in consequence of fraudulent misrepresentations made by him. Upon the whole case, I am satisfied the verdict is correct, and that plaintiffs are not entitled to a new trial.

It only remains to notice an objection made to the form of the decree. It is true the decree is against the plaintiff, Powell. Provision is, however, made that the debt due by the garnishee, Sauer, shall be first applied to the satisfaction of defendant's claim. It is conceded that this debt is more than sufficient for the purpose. But were it otherwise, the decree is still correct. It is too plain for discussion, that upon the marriage the husband becomes responsible for all the debts of the wife contracted before the marriage. To what extent her separate estate may be subjected to such debts is not very well settled. But it is clear that a mere antenuptial settlement will not relieve the husband of the obligation cast upon him by the law, to discharge the debts of the wife, provided the claim is asserted, and the recovery had during the existence of the coverture. This responsibility arises upon the marriage, and only ceases with its termination.

For these reasons, I am of the opinion the decree of the Chancery court should be affirmed.

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

DECREE AFFIRMED.