This is a supersedeas to the circuit court of Marshall county.
It was-an action of ejectment in which there was a verdict by the jury in May, 1860, for the defendants, and a motion by the plaintiffs for a new trial, which the judge took time to consider, but before lie determined the question his office was vacated and another judge succeeded him, who finding the said motion still pending and undetermined, at the May term, 1862, granted a new trial, without hearing or examining the testimony adduced before the jury, there being no note or memorandum of the same filed or preserved; the judge assigning as his reason, that the said motion having been made and entertained, and the change of judges occurring before its determination, made it proper, in his opinion, to grant the new trial without any knowledge of the testimony. To this ruling of the court, granting a new trial, the defendants excepted. At the June term, 1864, another trial was had before another judge and another verdict for the defendants, which was,-on the motion of the plaintiffs, set aside and a new trial awarded.
At the November term, 1864, the plaintiffs moved the court for a change of venue, which was overruled and the plaintiff’s again excepted.
At the June term, 1865$ there was another trial before another judge and another verdict for defendants. Upon this last verdict, the plaintiffs, to sustain the issue on their
Two points are made by the plaintiffs in error, who were also plaintiffs in the court below, and both arise upon the record. 1st, That the eireuit court erred in overruling the plaintiffs’ motion for the change of venue. 2nd, That the circuit court erred in excluding the said copy of the grant certified fey the register of the land office of Virginia.
In support of the first point, viz: the motion for a change of venae, the plaintiffs proved by the affidavits of Messrs. Jacob, Good, and Hoge, that a fair trial could not, as they believed, be had in Marshall county, from the strong and ■unjust prejudices which existed among the people to the Woods title, under which the plaintiffs claimed; and by the affidavits of three other witnesses, viz. Dickey, Dowler, ■and Conner, all long residents of Marshall county and well acquainted with the people. The plaintiffs further proved the existence of said prejudice, that it was general and from what they heard and believed, it was not probable that a fair trial could be had in the county for the plaintiffs claiming under the Woods title.
Upon this state of facts the court erred in overruling the motion for a change of venue. Dor every man is entitled •to a fair trial, and here it could not be had if the evidence 'is to be believed, and there is nothing to discredit it.
The second point considered is whether the court erred in ■excluding the copy of the grant of Woods, certified by the register of the land office of Virginia.
The reason tor the exclusion, alleged by the court below, .•as stated in the bill of exceptions, viz: that, i-there was no .seal to the said copy of said grant,” was not urged by the
As the record shows that the evidence upon which the verdict was founded was not made known to the court by proofs, or otherwise known to him, and not therefore considered, and so expressly stated, I think the court erred in setting aside the said verdict, and as the defendant excepted for that cause, they are entitled to the benefit of the exception. But since the defendants have not appealed nor does
The court entered the following order :
Ordered, That the judgment of the said circuit court of Marshall county, and all the proceedings had in the cause back to and including the judgment rendered at the May term, 1862, setting aside the verdict and awarding a new trial, be, and the same are hereby, reversed and set aside, and the cause remanded to the circuit court aforesaid, to be there proceeded in upon the pending motion for a new trial and such other proceedings as may be had therein, in con
Judgment Reverse».