the power of conditional or commutative | be pardoned on condition of being confined pardon did not exist. Ball's Case, 8 Leigh, in the penitentiary." But the Legislature 726, 730-31. refused to adopt it: thus declining to confer on the governor the power of conditional pardon.

It had been argued in that case that a new trial on a question of fact should not be granted, because, among other reasons, redress could be obtained by an appeal to executive clemency; and in answer to the argument, Judge Fry, delivering the unanimous judgment of the court, said:

810

"Besides the injury to the accused in denying a new trial, and giving resort to the pardoning power only, justice might often be defeated by it. The pardoning power in this State is, in its nature or practice, more *limited than that of the King of England. Commutative or conditional pardons are often granted there, by means of which a party may undergo a punishment more suitable to his crime, though less than that to which the judgment of the court consigned him. But with us pardons are, constitutionally or from practice, unconditional and absolute. A new trial might often redress an injury without wholly discharging from punishment-but a pardon would discharge altogether. A person indicted for murder might be convicted of murder in the first degree. It might be clear that this was not right, but that the offence was murder in the second degree or manslaughter. If the court could not grant a new trial, the executive must pardon and discharge the prisoner." There was no dissent from these views; and the other judges were Daniel, Field, Lomax, Scott, Leigh, Estill, Brown, Clopton, Allen, afterwards president of this court, Mason and Nicholas "nominæ, clara et venerabilia." The pardoning power, it is true, was not directly in issue in the cause; but the expression of an opinion as to its extent and effect was in some sort a necessity to meet the argument urged by the attorney general, that a new trial should not be allowed, because redress could be had by an appeal to the pardoning power-the mind of the court was called, therefore, directly to the point, and the views presented were doubtless well and carefully considered. An opinion thus expressed is entitled, in my opinion, to all the weight and force of a judicial decision.

In this state of the law, the revisors in 1847 recommended to the committee on revision, and the committee reported to the Legislature for adoption, he following provision :

In 1851 a new constitution was adopted, by which, in addition to the power "to grant reprieves and pardons after conviction," the power "to commute capital punishment was, for the first time, given by the State constitution to the governor. The fact that this power of commutation in cases of capital punishment was thus expressly added to the power of pardon, clearly shows that the framers of the constitution concurred in opinion with the Legislature and judiciary, that it was not included in the power of pardon; and the fact that they confined it to cases of capital punishment, as clearly shows that the framers of the constitution did not intend to extend it further. The implication is almost irresistible that commutation, in other than capital cases, is forbidden by the constitution of 1851. "Expressio unius, alterius exclusio." The present constitution is to the same effect precisely, except that it does not, as all our previous constitutions did, place the pardoning power under the control of the Legislature.

Such is a brief history-perhaps an imperfect one-of the law on this subject in Virginia; and the question is, not whether a monarch of Great Britain, in the exer

812

cise of a high prerogative, may not dispense clemency *at his own will and on his own terms-pardon absolutely, or impose such conditions of pardon as to him may seem right; but whether, under the constitution and laws of Virginia, understood as they seem to have been by her Legislatures, and expounded as they have been by her courts, a governor of Virginia has the unlimited power of pardon exercised by the crown of Great Britain. My opinion is that he has not. I concur fully with the Supreme Court of Appeals in Fowler's case, and with the General court in Balls' case, that the power of conditional or commutative pardon does not, under our constitution and laws, belong to the governor of Virginia, except, of course, in cases of capital punishment; to which, by the present constitution, it has been expressly extended.

The case before us is not, in my opinion, a case of conditional pardon. A "In any case wherein the governor has conditional pardon always contains a condipower to grant a pardon, instead of granting tion which a prisoner may accept or reject the same unconditionally, he may, after at his pleasure. In this case there is no such 811 sentence, upon the petition of the per- condition, or anything like it; nor is there son sentenced, grant him a pardon upon a word in the warrant about a pardon of the such conditions as may be deemed proper by offence. There is neither pardon nor condithe governor, and be assented to by the peti- tion referred to in it. It is simply a mandationer; and for the purpose of carrying into tory commutation of a sentence of imprisoneffect such conditional pardon, he may issue ment in the penitentiary to imprisonment in his order or warrant, directed to any proper the city jail of Richmond; and no acceptance officer, which shall be obeyed and executed or consent is required of the prisoner. It is, instead of the sentence that was originally in my opinion, plainly the exercise of the awarded. Especially it shall be the duty of the superintendent of the penitentiary to receive and confine therein, according to such order or warrant, any person convicted of any crime punishable with death, who shall

V R, 22 Gratt-19

power of commutation merely; and the case not being one of capital punishment, that power has not only not been allowed by the constitution, but by the strongest implication excluded. It does not come then within the

289

ruling in Fowler's case, where there was a valid pardon but a void condition, leaving the pardon absolute. Here there is no pardon and no condition; but simply an unauthorized commutation. The entire act of the governor is, therefore, in my opinion, illegal and void; and the prisoner, instead of being discharged by the Corporation court, should have been remanded to *the custody of the sergeant of the city of Richmond, to be conveyed to the penitentiary, in obedience to the judgment of the Hustings court.

813

follows:

Isaac Newton was the owner of a tract of land of three thousand acres, in the county of Prince William, on which there was a MONCURE, P. and ANDERSON, J., con- chase money, held by William H. Tayloe and deed of trust for $30,000, a part of the purcurred in the opinion of Staples, J.

814

Judgment reversed.

*Nagle v. Newton.

Benjamin O. Tayloe. A part of this debt had been paid by Newton, and the remainder was evidenced by notes, each for two thousand dollars, payable annually. On the 12th of March 1861, Isaac Newton entered into a written contract with John Nagle, Jr., by which he agreed to sell to Nagle twelve hundred and ten acres of this land, to be estimated at twenty-five dollars per acre. And for this land Nagle agreed to give to Newton a mortgage upon it to secure the payment of twelve thousand dollars, payable according to the agreement between Newton and the Tayloes; namely, $2,000 per annum, to pay $500 at the execution of the deed, and give his note for $500, payable in six months from of the land and the property upon it. HELD: date. To convey to Newton ten houses, sit1. Same-Same-Compensation for Damages,*—The uate in Camden, New Jersey, subject to a case being a proper case for decreeing specific mortgage of $700 each; two houses eighteen execution of the contract, the court has jurisdic-feet front each on Pepper street, Philadelphia, tion, as ancillary thereto, to decree compensation to J for the damages he has sustained by the improper acts of N and his agents. 2. Same-Same-Same-How Damages Ascertained.† -The damages may be ascertained either by a commissioner, or by an issue of quantum damnificatus to be tried at the bar of the court.

November Term, 1872, Richmond. Contract for Sale of Land-Specific Execution.-N sues J in equity to rescind, or enforce specific execution of a contract, for the sale of land by Nto J. J answers, not objecting to specific execution, but insisting that he shall be compensated for injuries to which he has been subjected by the failure of N to comply with his contract, and by the intermeddling of N and his agents with J's possession

This was a suit in equity brought in February 1866, in the Circuit court of Prince William county, and afterwards removed to the Circuit court of Alexandria, by Isaac Newton, formerly of Pennsylvania, but then of Washington city, against John Nagle, Jr., to rescind a contract for the sale by Newton to Nagle, of a tract of land in the county of Prince William; or if the contract could not be rescinded, then for the specific execution. Nagle answered and did not object to the specific execution of the contract; but insisted that he had been subjected to great losses by *Compensation for Damages. -See Ayres v. Robins, 30 Gratt. 118; Stearns v. Beckham, 31 Gratt. 421; Ewing v. Litchfield, 91 Va. 580, 22 S. E. Rep. 362.

The rule laid down by the principal case, that jurisdiction to specifically enforce a contract carries with it, as ancillary, the jurisdiction to give damages, is followed by several subsequent cases citing the principal case as their authority. See Ayres v. Robins, 30 Gratt. 118; Stearns v. Beckham, 31 Gratt. 421; Campbell v. Rust, 85 Va. 668, 8 S. E. Rep. 664: Ewing v. Litchfield, 91 Va. 580, 22 S. E. Rep. 362. +How Damages Ascertained. This portion of the syllabus is sustained in Campbell v. Rust, 85 Va. 666, 8 S. E. Rep. 664, and Grubb v. Starkey, 90 Va. 834, 20 S. E. Rep. 784. See the principal case, distinguished in Witz, etc., Co. v. Mullin, 90 Va. 806, 20 S. E. Rep. 783.

free from all incumbrances, and two ground rents of $1,600 each, on lots situate on Seventh street, above Oxford, clear of all incumbrances. All the above deeds and papers to be delivered as soon as practicable.

In pursuance of this agreement, the deeds were prepared and executed by the parties. Isaac Newton and his son, George Bolton Newton, to whom he had conveyed five hundred acres of the land, executed to Nagle a deed for the twelve hundred and ten acres of land; Nagle executed deeds conveying the property in Camden and Philadelphia, and also the mortgage to secure the $12,000; and a deed of release of the lien for the debt to the Tayloes, was executed by the trustees and Benjamin O. Tayloe, and was forwarded to Edward T. Tayloe, who was then residing in the State of Alabama, to be *executed by him; but though he received it and executed it, it miscarried on its return, and was found in the deadletter office at Richmond after the war was over. All the deeds, except this last, were placed in the hands of Philip R. Fendall, to be held by him as an escrow, until the deed of release from the Tayloes should be executed and ready for delivery. And on the 3d of April 1861, Benjamin O. Tayloe and Isaac Newton entered into a bond to Nagle, in the penalty of $1,000, with condition that the deed of release should be executed and delivered within thirty days.

816

Nagle was put into possession of the land, and proceeded to make expensive improvements upon it, and took to it a large amount of stock and farming implements, for the

818

purpose of cultivating it extensively; but the
in 1862, the land still standing in the name
of Isaac Newton, it was sequestrated by the
Confederate government, as his property;
and all the personal property on the place
was taken possession of by the officer of that
government, and appropriated to the uses of
the Confederate government.

When Nagle took possession of the land he found there Lewis Kurtz, who had been in the employment of Newton; and Kurtz was employed by Nagle to superintend and manage for him. Subsequently Kurtz seems to have been employed by Newton to hold the land for him. In May 1865, Nagle went to the farm with a number of men who he had employed to work upon the place, taking with him horses, cattle, provisions, &c., and he found Kurtz there, and told him he must move at once, or he would put his goods into the road. Kurtz asked for the delay of a day, which was twice allowed; but after several days his goods, which had been packed up by his family ready to be taken away, were put into the road. Kurtz thereupon applied to the military authorities who were stationed in the neighborhood, and a

squad of soldiers were sent, who sent 817 off the men *brought by Nagle, gave possession of the premises to Kurtz, and turned over to him the personal property of Nagle which was there. And Kurtz continued to hold possession of the premises, and use and dispose of the personal property, until March 1866, when he was ousted by a proceeding by unlawful detainer.

Nagle filed with his answer a statement of the moneys which he said he had expended upon the land and had incurred, either in paying Newton or in defending himself against his disturbances, a large part of which was lost, owing either to the failure of Newton to comply with his contract, or by his improper intermeddling with his possession and enjoyment of the premises through the instrumentality of Kurtz, and otherwise. This statement amounted to $41,801.90. And he insisted that he should be allowed, in the adjustment of their contract for the land, the amount of the losses he had thus sustained.

In June 1866, the court made a decree referring the cause to a commissioner to take various accounts, and directed the deeds which had been delivered as escrows to be deposited with the clerk of the court. The commissioner reported that after crediting the mortgage of $12,000 which Nagle was to give, there would be due from Newton to the Tayloes $6,169, and that the net rents received by Nagle from the property in New Jersey and Philadelphia since the contract was $3,819.68. He reported that Nagle had sustained damage by the intermeddling, &c., of Newton; but he did not state an account or the amount. And for his failure to be so Nagle excepted.

The cause came on to be heard on the 1st of June 1867, when the court made a decree to enforce the specific execution of the contract between Newton and Nagle, and directed the different deeds to be delivered, including

deed of release from the Tayloes; and that Nagle should pay to Newton $3,819.68, the net *rents aforesaid; and that each party should pay his own costs. And being of opinion that for any injury Nagle had sustained by the misconduct of Newton, he must seek his redress in another forum, no decree was made on that point. From this decree Nagle obtained an appeal to the District court of Appeals at Fredericksburg; where the decree, so far as it enforced the specific performance of the contract and the payment of the rents by Nagle to Newton, was affirmed; but it was ordered that an account should be taken of the damages sustained by Nagle by the acts of Newton or his agents. And thereupon Nagle applied to this court for an appeal; which was allowed.

Neeson, for the appellant.

F. L. Smith and Wells, for the appellee. CHRISTIAN, J., delivered the opinion of the court.

The court is of opinion that there is no error in the decree of the Circuit court of Alexandria county, so far as the said court decreed a specific performance of the agreement for the sale of certain real estate entered into between Isaac Newton and John Nagle, Jr.

The bill and the undisputed facts in the record present a clear case for specific performance. The answer of the defendant does not resist a specific performance of the contract entered into between him and the plaintiff; but claims that he is entitled to compensation for damages sustained by him arising out of the acts of the plaintiff (Newton) and his agents in interfering with the possession and enjoyment of the land bought by him of said Newton. The defendant does not seek a recision of the contract; but expresses his willingness to perform it on his part, and his desire to have the same specifically executed whenever the court shall award to him compensation for the damages he has sustained in consequence of the acts of the plaintiff and his agents. 819

*The whole controversy in the case, which has been one of protracted and bitter litigation, is now narrowed down to the single point (as the case is presented before this court) of a claim on the part of the defendant, for compensation for damages sustained in consequence of the acts of the plaintiff and his agents.

The Circuit court of Alexandria decreed a specific performance of the contract between the parties; but refused to direct any enquiry as to the compensation claimed by the defendant; that court being of opinion that "if Newton has interfered with Nagle's possession and rights, either through the agency of Kurtz or otherwise; if he has been the cause of personal loss to Nagle, or disturbed him in the enjoyment of his private or personal rights, he must seek redress in another forum."

Upon an appeal from this decree to the

District court of the Fourth judicial district, | 821 to the specific *performance, which held at Fredericksburg, that court, reversing would otherwise be inequitable, direct to this extent only, the decree of the said an enquiry as to the damages which the Circuit court, was of opinion "that the appel- defendant has sustained in consequence of lee, Isaac Newton, is liable to the appellant the acts of the plaintiff or his agents; for any damages which may have been sus- or whether the case must be retained in tained by him arising from the acts of said the court of chancery until the question Newton or his agents in interfering with the of damages can be ascertained in another appellant's possession and enjoyment of the form, to wit: in a court of law. land bought by him of said Newton, and that an account ought to be taken of the amount of any such damages; and the liability of said Newton therefor, ought to be enforced in this suit." An appeal from this decree brings up the case to this court.

But the case before us is one in which spe- tice of courts of equity, aided by legcific performance was decreed, and was man-islative enactment, these courts are now ifestly a case in which specific performance provided with all the machinery necesought to have been decreed. The court, sary to aid its jurisdiction to make an end therefore, having full and complete jurisdic- of a cause properly before it. An issue out tion, and having properly exercised that of chancery may now be tried at its own bar, jurisdiction in decreeing specific perform- instead of being sent (as formerly) to a court ance, the only question is, whether or not of law for trial. One manifest object of the court of chancery may not, as an legislative changes in the administration of incident to the relief sought, collaterai | the law has been to enable courts of law and

courts of equity to do complete justice in cision. The bill then, so far as it related matters arising within their respective jurisdictions; and it is in entire accordance with this that courts of equity should proceed by way of damages in cases where they properly have jurisdiction, and where complete justice requires the payment of damages.

to the main end of it, was never sustainable; and taking away that ground there could be no propriety in filing a bill in equity for the sole purpose of obtaining compensation or damages for an alleged fraud, and to tie up a part of the purchase money until these damages were liquidated."

*

*

It is impossible, therefore, to perceive either the necessity or propriety, in a case like this (where the court has complete jurisdiction of Tucker, P., said in the same case, "It is the subject, and with all the parties before it, obvious, that no recision of the contract and where a specific performance has been could have been decreed or properly asked decreed), of sending the parties before for in this case. As the form of another forum, in order to litigate rights the proceeding excludes the possibility of arising directly out of the subject before the recision, the bill can only be looked on as court of chancery, and especially where a bill for an injunction to restrain the payspecific performance would be inequitable, ment of an unpaid balance of purchase and complete justice could not be done without money until a claim for unliquidated daman adjustment of these questions. Why ages for an alleged fraud shall have been should the cause be divided into two settled by an issue to be directed by the 823 suits a part of the controversy to be court." adjudicated in a court of equity, and a part in a court of law? Why should two distinct and independent tribunals be invoked to dispose of a cause between the same parties, where their respective claims are so connected as to be inseparable? Why call upon a court of law to aid the court of equity, which has the undoubted original jurisdiction of the subject matter and of the parties, and is provided with all the machinery necessary to arrive at the same result, and in the same mode, if need be (trial by jury), which could be attained in a court of law? We cannot perceive the necessity or the propriety of such a practice. Nor can we find any authority among the modern decisions to require it.

The cases relied upon by the learned counsel for the appellee, are cases where the plaintiff came into a court of equity seeking compensation in damages for alleged fraud, misrepresentation, &c., and where upon the face of his bill or in the case made out, there is no ground for equitable relief.

The case of Robertson v. Hogsheads, 3 Leigh, 723, so earnestly relied upon by counsel, is not in any respect opposed to the principles and practice of courts of equity as above expounded. In that case the bill in form and upon its face was a bill claiming damages for the breach of a contract. It did not ask even for a recision of the contract; but the claim of the plaintiff was merely for compensation in damages in consequence of certain alleged misrepresentations in respect to sufficiency of springs and their actual deficiency. It was argued by counsel in that case, that under the prayer for general relief he might claim a recision of the contract. Carr, J. says, "Taking up the case either upon the bill and answer or upon the whole evidence, there is no ground furnished for a recision of the contract in any stage; but after it was executed by giving and receiving a deed, taking possession, paying good part of the purchase money, executing bonds for the balance, and a deed of *trust to secure the payment, there is not the shadow of a cause for a re

824

It will thus be readily perceived, that the case of Robertson v. Hogshead, is not, in the slightest degree, in conflict with the doctrines herein announced. In that case there was no possible ground upon which the jurisdiction of a court of equity could attach. But it was a bill filed by a plaintiff merely for the purpose of recovering damages for the breach of a contract. In the case before us the jurisdiction of a court of equity is unquestioned. The plaintiff files his bill for specific performance in a case where he is clearly entitled to it, and which is decreed by the court; and the defendant not objecting to specific performance, claims that he is entitled to compensation by way of damages arising from the acts of the plaintiff and his agents respecting the subject matter of the agreement. In such a case the court having obtained possession of the subject, it will do complete justice by disposing of the whole subject at its own bar, without sending the parties to another forum. This practice has been commended and estab

825

lished by numerous decisions of this court. See Payne *v. Graves, 5 Leigh, 561; Billups v. Sears, 5 Gratt. 31; Lyons v. Miller, 6 Gratt. 427; Bank of Washington v. Arthur, 3 Gratt. 173; Martin v. Hall, 9 Id. 8.

It may be further observed, that there is an obvious distinction between cases where the party seeks relief in equity as plaintiff, and where compensation is sought by the defendant in resistance or modification of the plaintiff's claim. In the latter case, the maxim prevails that he who seeks equity shall do equity. 2 Story's Eq. 799 (a). Where a plaintiff in equity seeks the aid of the court to enforce specific performance, he can only receive such relief upon equitable terms; and if it would be inequitable to grant relief without compensation to the defendant (whether such compensation be by way of damages, or otherwise), it is competent for the court having possessed itself of the subject by proper exercise of its jurisdiction, to do complete justice between the parties; and as ancillary to that purpose, may ascertain damages sustained