Opinion
10-30-1818
Ruffners v. Barrett
Leigh for the appellant. Stanard contra.
The appellee exhibited a bill in the Superior Court of Chancery for the Staunton District, against Daniel Ruffner, Joseph Ruffner and Samuel Henry, setting forth that he executed his bond to Joseph Ruffner and Samuel Henry executors of J. Ruffner, for $ 119.50, that Joseph Ruffner assigned it to Daniel Ruffner; that the complainant paid the money to Samuel Henry, without notice of the assignment, and took his receipt, to which one John Henry was subscribing witness; that the assignee brought suit on the bond in the Superior Court of Cabell county, and obtained judgment, the subscribing Witness to the receipt being absent. He prayed an injunction, and general relief.
The Injunction was awarded. The Ruffners, by their answers, stated that the sale of the property, for the price of which the bond was taken, was made by the executors for the benefit of Daniel Ruffner; and that this was notorious at the time; that, accordingly, the bond was immediately transferred to him; that Barrett the Complainant was well apprised of all this, and, before his payment to Samuel Henry, had full notice of the assignment.
To these answers the plaintiff replied generally: --a decree nisi was entered against Henry, but does not appear to have been served.
Barrett exhibited his receipt, and filed several depositions proving the payment, and tending to prove it was bona fide.
Daniel Ruffner filed a deposition to prove that Barrett had notice of the transfer of the bond to him, at the very time of it's execution. Upon a motion to dissolve the Injunction, Chancellor Brown directed a new trial at the bar of Cabell Superior Court: a verdict was found for Barrett; but the Court certified, with it, that the weight of evidence was in favour of Ruffner. The Chancellor directed another trial, which being had, the Jury found again for Barrett. The Court certified the verdict, and with it all the evidence given before the Jury; from which it clearly appeared that Barrett, before he paid the money to Henry had full notice of the assignment of the bond to Daniel Ruffner.
The Chancellor perpetuated the Injunction; and Ruffner appealed.
Leigh for the appellant.
Since all the evidence which was before the Jury appears to this Court, and the merits are clearly in favour of the plaintiff at law, there is no necessity for awarding another trial, but the Court may direct the Injunction to be dissolved and the Bill dismissed.
Stanard contra. It is not necessary for me to discuss the evidence after two concurring Verdicts. This Court cannot judge of the credibility of the Witnesses, as the Jury could. Their manner of giving testimony, their looks, could be seen by them, but can not now be known by this Court. In strictness the Chancellor ought not to have granted the second new trial, the Judge's certificate being, merely, that the weight of evidence was against the verdict.
Stanard v. Graves, 2 Call 369-374.
Swain v. Hall, 3 Wils. 45.
Leigh in reply. The verdict and decree are not only against the weight of evidence, but against the evidence altogether; for there is no contradictory testimony in the case. In Shanks and McRae v. Fenwick, 2 Munf. 478, this Court regarded the weight of evidence, and discarded all other considerations. In Stanard v. Graves, three concurring verdicts had been given on the same evidence. If in this case there were three such verdicts, I should submit.
OPINION
By this Court, the Decree was reversed, the Injunction dissolved, and the Bill dismissed with Costs, October 30th 1818. This Order was re-considered, November 4th; amended by setting aside the dismission of the Bill as to Samuel Henry; and the cause remanded to the Court of Chancery, to be farther proceeded in against him.