delivered the opinion of the Court:
It is insisted by counsel for appellants, that the Court should, notwithstanding the verdict of the jury, upon the final hearing, have looked into ’ the whole record, and decreed in favor of the complainants, as according to their claim the two depositions taken and returned after the verdict was rendered, but before the decree was pronounced, showed a preponderance of evidence in behalt of the complainants.
Before the first appeal was taken, as ascertained by this court, it was the duty of the court below upon the hearing to have, directed an issue, as the evidence was so conflicting as to make it impossible for the court to decide the question of fact satisfactorily. 8 W. Va. 133; Arnold v. Arnold, 11 W. Va. 449; Jarrett v. Jarrett, Id. 584; Cranmer v. Anderson, Id. 562; McFarland v. Douglass, Id. 637.
In Carter v. Campbell, Gil. 159, it was held: “In a case proper for an issue the verdict is conclusive, where the evidence is conflicting.” In Paul et al. v. Paul, 2 H. & M. 525, it was held, that, “ the court, before whom an issue out of chancery was tried, having been satisfied with the verdict of the jury, and having overruled a motion for a new trial, to which opinion no exception was taken, the verdict ought forever to remain undistured.” In Lee’s ex’r v. Book, 11 Gratt. 182, it was held: “ where an issue is directed in a chancery cause, and a verdict is found to which no exception is taken, and a decree is rendered thereon, the facts found in the verdict must be regarded in the Appellate Court as the established facts of the case.” To the same effect is Fitzhugh’s ex’rs v. Fitzhugh, 11 Gratt. 210.
It would be absurd to say that in a certain cause it was error not to direct an issue; and when that issue had been directed and regularly tried, and no errors committed in the trial thereof, and the verdict of the iury rendered
After the verdict is rendered upon an issue properly directed, the court cannot look at the record for the facts submitted in the issue, nor to the facts or evidence certified upon the trial of the issue, but must accept the verdict of the jury for such facts, unless under the rules goveening courts of equity in such cases it should set aside the verdict, and grant a new trial.
It is true that the object of directing the issue is to
The first, second, third and fourth exceptions are to the rulings of the court in refusing to permit certain evidence to be admitted to the jury.
The principles, upon which a court of equity directs a new trial of an issue, are somewhat different from those which govern a court of law in granting new trials. ‘‘It has been held over and over again (says the Ld. Chancellor in Barker v. Ray, 2 Russ. 63) that if on the trial
Looking at the evid.ence as certified in the sixth bill of exceptions, the verdict should not have been changed by the introduction of the refused- testimony. The evidence was clearly inadmissible by the most elementaiy rules of evidence. If Rogers had been living, he certainly could not have been permitted to testify that he claimed to own the land, to show his title thereto; and certainly his declarations to that effect are inadmissible. There was absolutely no excuse for undertaking to prove title to the property in Rogers by showing what the “ general understanding in the community ” was with reference thereto.
Bill of exceptions No. 4, attempts to raise the question, whether one of the plaintiffs could testify to conversations had between James Capehart, deceased, and the brothers and sisters of witness who were co-plaintiffs, such conversations not being addressed to witness but to his brothers and sisters in his presence and hearing. The bill states that “the plaintiffs in order to maintain the issue upon their part produced Charles Rogers, one of the plaintiffs, who was duly sworn as a witness, and after proving by him that his brothers and sisters, co-plaintiffs in this suit, had all gone west, and that his understanding was that they had land there, offered to prove by said witness that James Capehart, deceased, had told them to go, and all that Capehart, deceased, said upon that occasion in his, witness’s, presence and hearing; and that it was not a transaction had personally by witness with said Capehart, deceased, but a transaction between the deceased and his, witness’s brothers and sisters in witness’s presence. To which the defendant, James Cape-
This bill of exceptions is fatally defective, and does
The fifth bill of exceptions shows, that the plaintiffs introduced Henry Capehart as a witness, who was examined in chief and cross-examined, and, to lay the ground for proving that a contradictory statement had been made by the witness, he was asked, whether he. had not said to one G. B. Rayburn on a previous occasion: “That James Capehart, executor of James Capehart, deceased, had agreed that he would settle 'with him (witness) for his claim against said executor on account of the sale of the coal underlying the one hundred and fifty acre tract of land to Samuel Coit, if the Bogers heirs gained their suit.” To which he answered that, “he had not said that, but had said to said Bayburn that said James Capehart, executor, &c., had agreed that he would settle with him (witness) for that claim, when the Bogers suit was decided.” And thereupon the defendant James Capehart, executor, &c., produced said G. B. Bayburn as a witness, who after being duly sworn, was asked by the said de
Where a question is propounded to a witness which is
The seventh bill of exceptions was to the refusal oí the court to certify the “ facts proven” instead’of the
The sixth bill of exceptions is to the judgment of the court in overruling the motion for a new trial. The evidence in said bill is all certified.
Where a motion is made to set aside the verdict and grant
It is insisted that the court erred in requiring additional
For the foregoing reasons we see no error in the decree of the circuit court of Mason county rendered in this cause; and it is affirmed with.costs and $30.00 damages.
Judgment Affirmed.