
    Bedford vs. Brady.
    Nashville,
    December, 1837.
    Where a party sues in equity for a demand upon which, if sued for at law, an action of debt might have been brought, the act of limitations of six and not of three years will bar the complainant.
    Where a note or order evidencingindebtedness, is given up to the debtor for a claim on the government, which latter claim was not allowable by law: Held, that the consideration upon whieh the note or order wasgivenup had failed, and as the note or order was delivered to defendant, equity had jurisdiction to set it up and decree payment of its amount.
    In December, 1817, or January, 1818, Doctor Shelby sold Wm. Brady a horse, to be used by Brady on the Seminole campaign, for which horse Brady was to pay ninety dollars before his departure, or give Shelby whatever he should be valued at when mustered into service, or in case of Brady’s death, Shelby was to take a horse left by Brady at John Harding’s.
    Brady did not pay the money before bis departure, and on his return he gave Shelby at his request, a paper of the following tenor: “I promise to deliver the holder of this paper a claim on the United States for a horse lost on the Serfiinole campain, to be valued at $150.”
    Shelby transferred this paper to Sam. Houston, he to Geo. A. Bedford, and he proposed to assign it to the complainant, William H. Bedford, but he preferred to have the claim or certificate itself, upon which, Geo. A. Bedford enclosed the obligation to Brady and gave to complainant an order on him for a certificate. In 1826, Brady placed in the bands of complainant a certificate for $150, and other certificates for lost horses and other property to the amount of $750, and as the bill alleges, agreed that be should collect them from the government and pay himself the amount of the order drawn in his favor by Geo. A. Bedford, out of the proceeds when collected. Brady also on the 30th January, 1826, gave complainant a power of attorney in his name, to collect from the legal and proper officer appointed or that may be appointed at Washington City by the United States, to pay for property lost in the military service of the United States, all his demands against the government for lost property. On the 4th °f March following, the complainant filed claims for lost ty, and among others, for that lost by Brady, in the office of the third auditor of the Treasury, who did not then act upon them, and they were left on file in said office by complainant awaiting the action of the auditor. In April, 1826, Brady himself being at Washington, procured his claims to be passed upon, and on the 1st of May was paid about $400 in discharge of such as were satisfactorily established, for which sum he executed bis receipt. Among his claims for lost property was one for the horse purchased of Shelby, which was filed with the others.
    
      Vide Svrdoinxs. Skelton, ante page 41.
    
      By letter dated June 20th, 1826, the third auditor informed complainant, in answer to lrs letter making enquiries in relation to the claims filed by him, that Brady had caused his claimsjo be adjusted in person, and had been paid, &c. In reply to this letter, under date of July 15th, 1826, complainant informs the auditor that before the receipt of his letter, Brady had called on him and informed him what he had done, and adds, “the claims were the bona fide property of the Colonel, which were left by him with me for collection, and his calling on you and making settlement, was doing what he had ar[ight to do, and which accords with my wishes.”
    About the 1st. of June, 1831, Bedford filed this bill praying a decree against Brady' to pay him $200, the valuation of the horse he bought from Shelby, with interest on the same from the time it might have been received, say from the year 1818 or 1819; or if the court should think him entitled to recover no more than the amount specified in the paper given by Brady to Shelby, then he prays for a decree for that amount, with interest from July 20th, 1822, the time when he purchased it.
    The defendant among other things relies upon the statute of limitations, and that the remedy, if any, was at law. The answer also denied the statement in the bill, that complainant was to have a lien on all the certificates, and to pay himself out of the proceeds in the first instance; but the answer states that the specific claim or certificate of $150, was given to complainant in payment of the order, and that the order was given up to defendant. The certificate of $150, or w ' not ^01’ ^le l°st h°rse but for lost equipage, and was disallowed, not merely from defect of proof, but because the utmost allowed by law for lost equipage was $88.
    
      W. Ji. Cooke, for complainant.
    First as, to the jurisdiction of the court. We conceive the court bad jurisdiction.
    1. The complainant had clearly a lien on the claims and certificates placed in his hands for the amount of his debt.^ If this be so, then the jurisdiction is undoubted. Although the complainant may have had a remedy at law, the jurisdiction in chancery was concurrent.
    2. The complainant came here for a discovery as to the fact that these claims were put in his hands as means of payment, and that discovery was obtained, at least as to one of those claims; this gives jurisdiction, for having it for one purpose, the court will assume it for another to do complete justice
    Again,' the note and certificate were delivered up and in the hands of the defendant, so that complainant had a right to come into this court on that ground alone.
    The statute of limitations is no defence, for the complainant’s claim would not have been barred in a less time than six years, and this time had not transpired before filing the bill.
    
      R. J. Meigs, for defendant.
    If the paper given by Brady to Shelby, above recited, is to be regarded as an assignment of $150 of his claims against the United States for lost property, and he afterwards received the money so assigned, he would be looked upon in law as receiving it for the use of the holder of the paper, who could sustain an action against him for money had and received. 1 Chit. PI. 385, et seq. 1 Maulé and Selwin, 714: Chit. PI. 387. The case in Maulé and Selwin which is referred to by Chitty with approbation, founding on it a proposition in his text, is very much to the purpose here contended for.
    This action accrued May 1st, 1826, when the money was received, and is of course barred by the statute of limitations in three years.
    
      1/ there is a plain, unembarrassed remedy at law, this court , . . ,. . .- . . , i mi -ii i m i has no jurisdiction — u it has, the bill might have been tiled as soon as the money was received and withheld, and the statute of limitations applies to the bill as well as to the action. If this is a case, in which there is not concurrent jurisdiction vested by the principles of law in the law and equity courts, but exclusively in those of equity, then it deserves to be looked upon as a stale demand, the right being vested in complainant by his own showing, as early as July 20th, 1822, and his suit delayed till June 1st. 1831, being nine years and upwards. 1 Story’s Eq. § 529, p. 502.
    But that complainant looked to Brady for the money as lateas July 15th, 1826, and did not look to Brady’s claims filed in the third auditor’s office, is demonstrated by his letter of that date to the.auditor, above recited, because he says in that letter, the claims are the Colonel’s bona jicle property, they were left by him with me for collection, what he did he had a right to do, and it accords with my wishes.
   Reese J.

delivered the opinion of the court.

In 1818, Wm. Brady bought of Doctor John Shelby, a horse with a view to enter upon the military service of the U. States, on account of which he afterwards gave to Doctor Shelby a note of this tenor, “I promise to deliver the holder of this paper a claim on the United States for a horse lost on the Seminole campaign, to be valued at $150.” This note by delivery, passed from Shelby to Houston and from Houston to Geo. A. Bedford. The last named person proposed to let the complainant have it, but he said he would prefer to have the claim or certificate itself, whereupon George A. Bedford surrendered to Brady the note, and gave to complainant an order upon Brady for a claim or certificate for the amount of $150.

Some time in the spring of 1826, the defendant placed in the hands of complainant, five several claims or certificates for property lost in the service of the United States, two for $200,one for $150,onefor$125, andonefor$80, in order that he might collect them from the government, for which purpose a power of attorney was given by the defendant to complainant, upon which the order from George A. Bedford to defendant was given up to the latter by the complainant, who alleges in his bill that he was to have for his claim a lien on all the certificates, and to pay himself the $150, and the balance if collected to defendant.

Defendant in his answer denies this statement, but avers that the specific claim or certificate of $150, was given in payment of the note or order. Afterwards the complainant saving filed in the proper department the claims of defendant, the defendant himself obtained from the government $400, for the certificates of $200 each, and the balance of the claims have never been allowed. The specific claim- or certificate for $150, which in his'answer defendant alleges was given in payment, was not for a lost horse, but for lost equipage, and it was disallowed according to the deposition of Peter liagner Esq., not only from defect of proof, but because the utmost allowed bylaw for lost equipage tvould not exceed^$38. According to the answer itself then, and the proof of Hagner, complamant on the ground of failure of consideration, would be entitled to recover, unless barred by the statute of limitations, or unless this court should want jurisdiction. The suit is not barred by the act of limitations, because the action at law might have been either indebitatus assumpsit or debt, and the six years' necessary to bar the latter had not elapsed from 1828, before the filing of this bill.

But secondly, also, a court of chancery has jurisdiction in this case upon the grounds set forth in the answer itself. The note and the order were both surrendered to defendant, and the $150 equipage certificate, as defendant alleges, given in payment. How, under such circumstances,, without the utmost difficulty and embarrassment, if at all, could complainant have maintained an action at law. The defendant had got up first the note, and then the order, and if it were true, that when delivering over to complainant four certificates to collect for him, he delivered to him a fifth, as payment for the note and order, that fact seems to have been exclusively known to defendant himself. So in any view of this case, either that presented in the bill, or that presented in the answer, a court pf equity has jurisdiction to give the relief in this Case sought.

Let the decree be reversed, and let the complainant re- , n , . ... , - cover against defendant the $150, with interest thereon from-July 1826, until this time.

Decree reversed.  