
    Lewis Robertson v. David P. Bingley and Henry Leslie.
    1826.
    
      Charleston.
    
    The circumstances of this case were the following. It appeared that about April term, in the year 1815, the complainant commenced an action of trover against one Edward, Bingley, to try his right to certain negroes which he claimed under a deed of gift from Lewis Box, then deceased, of whom Bingley was the principal legatee and' executor. While the action was pending, in November 1817, the complainant filed a bill in the Court of Equity setting forth that Bingley had conveyed the slaves away by way of mortgage to one-:— Daniel and-— Leslie, for a debt which he owed them; and that John R. Cleary, the then sheriff of Charleston district, had them in execution, and was about to sell them in satisfaction of the debt. The complainant prayed that the defendants, Bingley and Cleary, might be enjoined from proceeding to sell under the mortgage ; and that Bingley might be compelled to enter into security for the forthcoming of the said slaves, &c. Whereupon Chancellor Waties on the 12th of December 1S17 ordered an injunction to restrain the defendants from selling the slaves Peter, Rind, Isaac, Plenty, and Charles; and that the defendant E. Bingley, and in his default the plaintiff, be entitled to take possession of the slaves upon entering good security, to be approved by the Commissioner of the Court, for their forthcoming upon the determination of the action at law; and in his default, if the plaintiff should enter into security as was ordered, the defendant should deliver him up the slaves and give him peaceable possession of them. And it was further ordered, that in case neither the plaintiff nor defendant Bingley should enter into such security, the slaves should be.sold by the sheriff on the first Monday in Feb-Tuary then next, and the money paid into the hands of the Commissioner of the Court, to be paid over to the complainant in case he should succeed at law. And if he should not succeed at law, then to abide the further order of this Court.
    
      ^Equity juris-practice,
    
      Whether that bond was ever entered into or not, there was no evidence e.xcept the affidavit of Henry Leslie, the defendant.
    Before the action at law was tried Bingley died. On the 16th of February 1819, about two or three months after the death of Bingley, Henry Leslie, one of the present defendants, made the following affidavit. “ South Carolina, Charleston district, Henry Leslie, being duly sworn, deposet.h that he was security to a bond conditioned for the forthcoming of certain negroes named in a, bill of injunction filed by Lewis Robertson against Edward Bingley. That the said negroes were by the said Edward Bingley delivered into the custody of this deponent, in order to be forthcoming to abide the future order of the Honourable the Court of Equity, pursuant to order made by his Honour Judge Waties. That for two years past this deponent had retained said ne-groes to answer the condition of his said bond. That said Edward Bingley is now deceased, and his' brother David P. Bingley has administered on his estate. That instead of reviving said suit, to secure which the said bond had been .taken by order of this Honourable Court, Lewis Robertson did on Monday night, the 1st instant, clandestinely inveigle and carry away, said negroes from the peaceable custody of this deponent and said administrator, with a view to elude the order aforesaid; and this deponent had good information that said Lewis was about to carry said negroes to Alabama.. And he stated to this deponent that if pursued by this deponent and said administrator on said night he was prepared to shoot them. The said Lewis well knowing that the said bonds were in full force, and said property was kept in the state, according to the decree of the Court of Equity aforesaid. (Signed) Henry Leslie. Sworn to before me, this 16th of February 1819, Lewis Roux, Q,. W.” On that affidavit he obtained from Chancellor Gaillard on the same day the following order. “ On motion of B. F. Hunt, ordered that the said Lewis do shew cause on Wednesday, the 17th instant, why he should not be attached for contempt of this Honourable Court for removing and secreting the negroes ordered by this Court to remain subject to its order.”
    What further proceedings took place in consequence of that order did not appear. It was, however, stated to the Court that Robertson was actually attached, and remained in gaol until the 19th of June, when upon delivering up the negroes to Leslie, the following order was made by Chancellor Gaillard.
    “ The defendant Robertson having complied with the decree of the Court, it is ordered, on motion of Mr Elliott, that he be discharged from gaol by the sheriff on his paying the legal fees incurred by his detention. June 4th 1819.” After this discharge from gaol it appeared that Robertson commenced an action of trover against David P. Bingley, who it appeared administered on the estate of Edward Bingley, for the same negroes. And in September 1821 he filed the present bill against Bingley and Leslie. This was called a bill of revivor, and after stating all the proceedings heretofore detailed, the complainant prayed, among other things, that the proceedings, both in this Court, and that at law, might be revived; that the defendants might discover the issue of the said slaves and their names, that they might be ordered to give security for their forthcoming, &c.
    
      The defendant Leslie, in his answer, said that he purchased the negroes in question of Edward Bingley in 1816, for a full and valuable consideration, without no-°f complainant’s claim. That there was no issue, and submitted by way of demurrer, that the Court of Equity had no jurisdiction. To this answer the complainant’s solicitor took the following exceptions.
    
      First. That he had not answered so much of the bill as stated that complainant commenced his action at law in Colleton district, to recover the negroes named in the bill from Edward Bingley.
    
    
      Second. That he had not answered, so much of the bill as stated that complainant afterwards filed his bill against Bingley and Henry Leslie, and that the Court enjoined the defendants from selling the property, and ordered security to be given for the forthcoming of the negroes, on the determination of the action at law.
    
      Third. That he had not answered, whether Henry Leslie did not enter into a bond with Edward Bingley to the Commissioner of this Court, conditioned for the forthcoming of the negroes, on the determination of the action at law.
    
      Fourth. That he had not answered to so much of the bill as stated, that after the death of Edward Bingley he the said Henry Leslie made application to this Court setting forth, that he was in possession of the negroes above mentioned under the order of this Court. That complainant had taken them out of his possession, and praying that complainant might be attached for contempt of the order of this Court in doing so, and that complainant was thereupon attached.
    
      Fifth. That he had answered so much as stated that complainant in order to purge his contempt was compelled to restore, the negroes; that they were restored to Henry Leslie's possession, and thereupon complainant was discharged.’
    
      
      Sixth. That he had not answered whether the said negroes were in his possession, or in whose possession, or where. -
    In all which particulars the complainant humbly insists, that the said Henry Leslie’s answer is evasive and insufficient. Wherefore he excepts thereto, and prays that the said answer may be taken off the file, that the defendant may be compelled to put in a full and sufficient answer.
    The above exceptions, after having been argued before the Commissioner, were sustained, and it was ordered that the defendant should answer more fully as required by the six exceptions.
    The exceptions were again argued before Chancellor De Satjssure.
    Chancellor.
    This cause came on in rather an usual way, certainly not on its merits, but on exceptions to the answer of Leslie one of the defendants, which it will be proper to decide on. There is, however, a plea to the jurisdiction and a demurrer, which must first be disposed of; for if either of them be maintained there ■will be an end of the case. The rule is, as was contended for by the counsel for the complainant, that a demurrer and an answer ought not to be put in together; and the answer overrules the plea, because the plea or the demurrer is to shew that the defendant is not bound to answer. In Taylor v. Milner, 10 Ves. 444, it was decided that if a defendant even obtains an order for time to answer, he cannot put in a demurrer with his answer, unless in special cases and with leave, or the demurrer will be set aside. And the rule is settled, that though [probably the defendant might have objected to answer lat all, yet having answered, he is bound to answer fully,. and make a full disclosure. Taylor v. Milner, 11 Ves. 111. Sir W. Grant, the Master of the Rolls, in hisjudgment in this case, said that it was too late to argue, whether, upon the case made by the bill then before him, the complainant was entitled to a discovery or not; for there is no difference whether the Court has determined that the bill is such as the defendant must answer, or whether the defendant has, by his own conduct, precluded himself from raising that question. It is now determined (he says) that the defendant must answer. That he must answer fully is a necessary consequence. See also ■-v. Harrison et at 4 Madd. Cha. Rep. 252, where the answer denied the partnership alleged in the bill, and refused to set forth any account. On exceptions to the answer for insufficiency in not having set forth the accounts, the Vice Chancellor said, that point was decided. If the defendant answer, he must answer fully. The defendant should have pleaded. The demurrer therefore must be put out of the way, and the exceptions to the answer must prevail if the answer be insufficient, unless the objection to the jurisdiction of the Court, on the ground that there is plain and adequate remedy at law, should prevail. On examining the circumstances they will be found to form a complete case. Robertson claims under a bill of sale of long standing, which defendants allege was voluntary, and to an infant, and that no possession followed the gift. On' the other hand, Edward Bingley had pretended to mortgage the slaves to Henry Leslie one of the defendants for a debt. The facts being complicated and the remedy at law difficult, Robertson filed a bill in equity, and an order was made by Judge Waties for a special injunction, by the terms of which the possession of the slaves was directed to be placed in the hands of the defendant Henry Leslie, on his giving security to abide the event of the suit at law. Under that decree Leslie got possession of the slaves, and even caused Robertson to be imprisoned for violating that order. Thus acting under and having the full benefit of the order of the Court whose jurisdiction he now disputes, Leslie pretends to have obtained a right to the slaves under a mortgage from Edward Bingley. Meanwhile, availing himself of the possession of the slaves obtained by the order of this Court, he has gone out of the limits of this state, and carried off the slaves. Under all these circumstances, I think the jurisdiction of this Court ought to be maintained, or the remedy of the complainant, if his claims are well grounded, would be eluded by the defendants, under the advantage they have obtained by the order of . the Court exercising jurisdiction on the case. This would be intolerable; for it is manifest that the complainant would have no remedy in this state if this bill be dismissed.
    
      1826.
    
      As to the exceptions themselves to the answer ofHenry Leslie, it is a well settled rule that if the defendant answers at all he is bound to answer fully. Some of the exceptions might, to be sure, be considered as relating to matters which were comprehended and sufficiently established in the records and proceedings and orders heretofore made, that it might be supposed that it was unnecessary to answer these matters alleged in the bill. There are, however, such matters of fact growing out of these records and orders and proceedings, and so mingled up with the records, that to make out an entire, full and consistent case, it was proper for the defendant to have answered them. I therefore concur with the Commissioner in Equity in .ordering, that the exceptions be' sustained, and the defendants be ordered to answer fully as to the points excepted.
    The defendant appealed, and moved that the decree of the Chancellor might be reversed on the following grounds:
    That the case was a plain action of trover, and the Court of Equity had no jurisdiction.
    
      March 1826.
    That the grounds of demurrer were sufficient, and supported, as they ought to have been, by the answer; and should have been sustained. And
    That the answer was sufficient.
    On the part of the complainant, it was objected, that this was an appeal from the order of the Chancellor directing the defendant to answer more fully, which, being a mere interlocutory order, was not the subject of an appeal.
    
      Hunt, for the motion.
    All the confusion of the case arises from the Judge’s not insisting on hearing the questions in their order: 1st. The plea. 2d. The demurrer. 3d. The answer.
    But although there were a plea and demurrer, he allowed the complainant to compel an answer, and then to except, to its sufficiency. A demurrer must be supported by an answer, and that sworn to. Pogson v. Owen, 3 Desaus. Rep. 36. A plea is sometimes supported by a full answer. The decree mis-states the reason of filing the bill, and of the special order. It was not because the facts were complex, but to procure security for the forthcoming of the property. The Chancellor mis-states the fact, that the slaves were directed to be placed in Leslie’s hands; he was but the security of Bingley. The bill against Edward Bingley was filed the 25th of November 1817. The bill of revivor, as it is called, was filed the 12th of September 1821. Box died in 1815. The first suit at law was in 1815. The prayer of the bill was that security should be given, and it was given. Leslie was riot a party to this suit, but,was security for Bingley; and if the bond is forfeited, he may proceed. No suit at law has been brought against Leslie. The bill of revi-vor states that the claim of complainant was never disputed. As to the answer — “If the defendant denies some substantive fact which, if admitted, would give relief until the truth of that fact be disposed of, no further answer shall be compelled,” per Lord EldoN in the case of Dolder v. Lord Huntingfield; and see Donegal v. Stewart, 3 Ves. 446, and Phillips v. Carey, 4 Ves. 107.
    It is only necessary that the defendant should answer the leading fact; but if he answer as to that, he may demur or plead as to the rest. 11 Ves. 383. Defendant need not answer what is matter of record. Our Court of Equity is of limited jurisdiction; and therefore consent cannot give jurisdiction.
    Where a defendant insists in his answer on the statute of limitations, it is the same as if pleaded, 2 P. Wms, 145. Defendant is not bound to answer any thing which is wholly immaterial to the relief prayed. Agar v. The Regent's Canal Company, Coop. Rep. 212. A defendant, stating a purchase for valuable consideration without notice, is not compelled to answer further. Jer-rard v. Saunders, 2 Ves. Jun. 454. “ The true tests, whether questions are to be answered or not, are, 1st. Whether the answer might lead to crimination. 2d. Whether they are relevant, and may be material to the case of the plaintiff.” Mont v. Scot, 3 Price’s Rep. 477.
    The ground taken is as follows. Complainant brought an action of trover for certain negroes, and filed a bill against the defendant Bingley, to restrain him from' taking the negroes out of the state pendente lite. On this bill an injunction was granted. It prayed no relief, and no subpoena was served: but Leslie became the security to the injunction bond. Bingley died, and the suit at law abated: no proceedings were for some time had, and Leslie, who claimed the negroes sued for by virtue of a purchase from Bingley prior to the suit of Robinson, left the state and took the negroes with him. Then the complainant to the original bill filed a bill of revivor, and published a notice for Leslie to make him a party, and to get the benefit of the original order for an injunction. He contended that the first bill was bad, as it stated no equity, and the Court had no jurisdiction. It was a plain question of title, and the appropriate remedy was at law, and the appropriate security bail ’ to the action. That Leslie was no party to the bill, and therefore it could not be. revived against him. That, in his answer to the bill of revivar, he stated enough to induce the Court to dismiss the bill, and that therefore the order for him to make further answer was wrong. ' That it was ah absurdity to compel a defendant to make any further answer than to. state enough to entitle him, at all events, to a decree. That having answered thus much he had pleaded in bar and demurred to complainant’s own case as. made: and he now appealed to this Court to dismiss the bill, which would settle all questions as to the pleadings.
    
      Petigru, Alt. Gen. contra.
    The grounds on which complainant claims relief have' been misconceived. It is said that the order, of 1817 for the special injunction was not warranted either by the rules of law or equity, and this bill being founded on it must fall with it. Defendant acquiesced in it, and availed himself of it to regain the possession of the negroes when complainant had taken them away; and the object of the bill is to place complainant in the same condition in which the proceedings in that case left him.
    Pending á litigation the property in dispute is often in danger of being lost or injured, and the Court of Equity would lend its aid to prevent it. Mitford, 109. 9 Wheat. 738. This case is made by the first bill against Edward Bingley. The original order was therefore within the legitimate powers of the Court. On the faith of the bond given by him, with Leslie as security, the property was left in his possession; and nothing could discharge 
      Leslie from this liability but the return of the property after the recovery against David P. Bingley. The case of Bulteney v. Warren, 6 Yes. 73, is analogous to the present and illustrative of the extent of the equity jurisdiction.
    If the defendant answers he must answer fully. It is a solecism in pleading to say that a defendant should answer, to say that he would not answer. Coop. Eq. PI. 312. i Ves. 41. Beames’Pleas in Equity, 38. 4 Madd. Rep. 452.- A defendant cannot answer and demur to the same bill, or to the same part of it. 6 Johns. Cha. Rep. 214.
    The order that the defendant should answer over is merely interlocutory; and if this motion is entertained it will follow that an appeal will lie for every interlocutory order, which would be attended with great delay and inconvenience.
    
      Hunt, in reply.
    The only cases in which the Court of Equity will interfere to prevent a loss or destruction of property in litigation in law are those in which the proceeding is in rem. Eden on Injunctions, 196. And even in those cases the Court will not interfere when the answer denies complainant’s right of property. Equity is reluctant to interfere with suits depending at law, and will not interfere when the legal rights are disputed. Eden on Injunctions, 358.
   Curia, per

Nott, J.

It would seem to me to be the most regular first to dispose of the question with regard to the right of appeal. But as that objection was not made until after the question of jurisdiction had been fully argued on both sides, it will be so much time lost to send the case back upon a mere matter of form, in order to let the same question come up again in another shape. I will therefore proceed to consider the prin-’ cipal question, as it appears on the face of the proceedings, without regard to the regularity of the proceedings themselves. That will require' us to go back to the original action at law to inquire into the regularity of the first injunction and the proceedings connected with it. And here it will be observed that in the first instance the complainant did not pretend that his claim was of such a nature as to give jurisdiction to the Court of Equity. It was an action of trover to try the right of property. The aid of the Court of Equity was required merely as ancillary to the Court of Law, to restrain the defendant from parting with the property in contest, so that he might have the benefit of his judgment if he should succeed in establishing his right. And that at once presents the question, how far the Court of Equity has aright to interpose its authority in such a case*?

A new case may exist withoutinvol-ving a new principle.

That is a question of no inconsiderable difficulty and importance. I do not recollect ever to have heard of an injunction having been issued in this state to restrain a defendant in an action of trover from parting with the property until the right had been tried at law. No instance of such a case has been produced from the English books. And if such a one can be found, I am induced to think the scrutinizing eye of the Attorney General would have fallen upon it. It does not indeed follow, even though no such case can be found, that the power does not exist. If from analogy the case can be brought within the principles of equity jurisdiction, the authority of the Court ought to be maintained even though the power may not heretofore have been exercised. A new case may exist without involving any new principle. If it be true, that in an action of trover the effect of a judgment of law may be eluded by a transfer of the property the moment it is about to be obtained, and that a person may thus be running a perpetual race in pursuit of justice without ever being able to overtake it, there is certainly a great defect iiiour system of jurisprudence, which calls loudly for redress. And if the Courts of Equity can, consistently with the settled doctrines of that Court, restrain the person in possession from transferring the property until the right can be determined, I am not disposed to be the first to say they shall not exercise it. And although I have not been able to find any case directly in point, there are many cases, both in the English and American books, bearing so strong a resemblance to such a case that, in point of principle, it will be somewhat difficult to draw a line of distinction between them. Mr Mit/ord (now Lord Redesdale) in his' Treatise upon Pleading in the Court of Chancery, 108, says, Courts of Equity will in many cases act as ancillary to the administration of justice in other Courts, by removing impediments to the fair decision of a question.” And in illustration of the rule he says in the next page, that pending a litigation the property in dispute is often,. m danger of being lost or injured, and in such cases a Court of Equity will interpose to preserve it, if the powers of the Court in which the litigation is are insufficient for that purpose. Thus, during a suit in an Ecclesiastical Court for administration of the effects a person dead, a Court of Equity will entertain a suit for the mere preservation of the property of the deceasedto till the litigation is determined. So an injunction will be granted to restrain the endorsement or negociation of a negotiable note, or to restrain the transfer of stock. Eden on Injunctions, 210,11. Lord Chedworth v. Edwards, 8 Ves. 46. If it be said, that it is allowed in England in those particular cases from motives of policy peculiar to that country, I answer, that the negro property of this country has as high claims to supremacy over every other personal chattel as bank stock or negotiable paper can have in England. It is therefore at least worthy of consideration, whether a Court of Equity may not, in perfect consistence with settled principles, interfere in those cases. Perhaps a distinction may be taken between cases where the specific property is sought for as in detinue, from those cases -where damages alone can be recovered as in trover- E°r in trover the specific property would not be liable to the judgment in preference to any other, even if the party should be restrained from parting with it during the litigation 5 and there may appear some inconsistency in requiring the party to give security to have the property forthcoming at the termination of the suit, w^en it is not the object of the action to obtain the pro-itself but damages for the conversion. It might seem, therefore, more congenial with the spirit of equity jurisdiction, to limit it to the action of detinue, and all the advantages would be attained; for there are few cases, if any, where trover will lie, that detinue may not be maintained. But it is not my intention at present to express any decided opinion on the subject; because I do not consider it necessary to the decision of this case. I will not, therefore, say that the Chancellor did wrong in granting the injunction to restrain the defendant from parting with the property. But, perhaps, that was as far as he ought to have gone until the answers of the defendants came in. The authority to grant injunctions is one of the highest prerogatives of the Court of Chancery. It ought therefore to be exercised with a due regard to the rights of all the parties in interest, and with that degree of caution which, if possible, will leave all those rights unimpaired. Whether, therefore, that part of the order which directs the property to be transferred to the or to be sold in the event of the security not being given, upon the mere ex parte statement of the complainant, without affording the defendants an opportunity of being heard, was not premature, is at least questionable. These observations, however, are made more with a view to the practice in future in similar cases, than on acc0unt of any influence which they can have on the J J decision of this case; for the parties all acquiesced at the time, and the period has long gone by when the exception ought to have been taken if any had been intended. .Before the answers of the defendants were put in, or even the subpoenas served on the action, Bingley, the defendant, died. By his death the suits both of law and equity abated. And in my opinion, so far as regards any thing which has been done since, all the proceedings may be considered as buried with him. There must have been necessarily an end of all those proceedings, because the action at law was for a tort which died with he defendant, and could not survive to his representa-And I have already shewn, that the bill in equity tive. „ „ „ was without foundation when the action at law was for being merely ancillary to the action at law the dent went with the principal.

Pending a equity will in-petty jn dis-Court'where ls lu,gated has not com-petentpowers protect u*

It seems interfere to preventslaves off pending an tínuefOT de" them; trovefwhere the plaintiff ges.

On an order tionto strain a party off daTesTtbe Chancolior them to be transferred to the complainant before the bill is heard.

merely ancillary to a suit at law, if the _ . -to does also.

This would bring me to the consideration of the proceedings, founded on the affidavit of Leslie, relative to the clandestine possession alleged to have been taken of the negroes by the complainant. But I will pass over that part of the case for the present, for the purpose of going into the consideration of the bill which is now before us. Enough has been said to shew that this can not be considered as a bill of revivor. The action against Edtoard Bingley was an action of trover which, being a tort, died with him: it did not survive to his representative. If the defendants or either of them have intermed-dled with the property of the complainant, they are individually liable, but they are not liable in the character of representative of Edward Bingley. Besides, neither of these defendants were parties to the former bill. Leslie’s name is indeed introduced as having purchased the property of Bingley, but no process is prayed against him. 2 Madd. Cha. 174. But even if he was a party he was only nominally so, and the bill having abated as to Bingley, the very substratum of the proceedings against Leslie failed. It has already been shewn that the only foundation for the first bill was, the allegation that the defendant Edward Bingley was about to transfer or remove the property. But such an allegation against him furnished no ground for an injunction against either of these defendants. To enable the complainant to sustain a bill against the present defendants, some such charge should have been made against them, or some other ground of equity jurisdiction exhibited. But I can discover none, unless calling upon the defendants to disclose the names of the issue be one. And as they deny that there is any issue that ground fails. The grounds on which the Chancellor has sustained the jurisdiction of the Court are :—

First. That the case is complicated arid the remedy at law difficult.

Second. That as the defendant Leslie availed himself of the authority of the Court of Equity to get possession of the property, he ought not to be permitted to deny the complainant the aid of the Court to restore him the possession if he is entitled to it.

With regard to the first ground, the case does not appear to me complicated, nor the remedy at law difficult. The complainant claims the property under a deed of gift from Lewis Box. The defendant Leslie claims it under a bill of sale from Edward Bingley, the executor and legatee of Lewis Box. Nothing could be more simple than the title on each side, unless it was the remedy which might have been by a plain action of detinue or trover.

The principle assumed in the second ground may, to a certain extent, be correct. But it must be taken with some limitation. A Court must deal out equal handed justice to all the parties before it. It cannot at the same time have jurisdiction for one man and not for another standing in the same situation. If a Court should direct a man to be imprisoned without any justifiable cause, or even where it has no jurisdiction, it may order him to be released again. Perhaps the case now under consideration may furnish as good an illustration of the rule as any that can be adduced. If the complainant had inveigled the property from the defendant during the pen-dency of the former suit, and while it was at his own request put into the keeping of the Court of Equity, I have no doubt but that he might have been attached for a contempt of the Court, and held in custody until he restored the property. But as soon as those proceedings ceased to exist the authority of the Court over the property ceased with them. The taking of the negroes by Robertson was a simple trespass, and was no more a contempt of the process of the Court of Equity than if his bill had never been filed. Ordering the attachment against Robertson upon the affidavit of Leslie, where no bill waspending, appears to me therefore as rather summary proceeding, which even the Court of in the plenitude of its power, ought not to have allowed. But suppose the Court in that case, for some reasons which we do not now see, to have acted within the true sphere of its authority, it would not give jurisdiction in this case. Suppose the Court of Equity should, by means of an attachment or any other process, direct the sheriff to turn a man out of his house, and put another into possession — that would not authorize the party ejected to bring an action of ejectment in the Court of Equity to regain the possession. And an action of trover can no more be maintained in a Court of Equity than an action of ejectment. To be sure, this anomalous proceeding has placed the complainant in a situation in which he would not otherwise have been placed. But a similar order by a Judge of the Common Pleas, or a common magistrate, or even by an individual acting without any authority, would have placed him precisely in the same situation. Assuming a jurisdiction in one case which a Court does not possess cannot extend its authority to another case over which it had not jurisdiction before. And this Court can not violate all the rules of law to give rei>ef'to a person who may even be remediless without SUCh relief.

An attach-noTbe grant-aacon]°"ger pend"

Equity can not violate law to give relief.

But it appears to me that the decree of Chancellor Saussure is bottomed on a misconception of the facts connected with the former bill. He says, “ Robertson filed a bill in equity, and an order was made by Chancellor Waties for a special injunction, by the terms of which the possession of the slaves was directed to be placed in the hands of the defendant Henry Leslie, on his giving security to abide the event of the suit at law. Under that decree Leslie got possession of the slaves and even caused Robertson to be imprisoned for violating that order.” Now by a reference to the order made by Chancellor Waties, it will be seen that Leslie’s name is not mentioned in it. The order directed that Edward Bingley, who already had the negroes in possession, should give the security. It was not under that decree, as the Chancellor supposes, that Leslie got possession of the slaves. But they Were delivered to him by Bingley as a counter security for uniting with him in the bond given for the forthcoming of the slaves at the termination of the suit at law. So that the conclusion of the Chancellor is drawn from a state of facts which does not exist.

After giving the complainant therefore the benefit of the most latitudinary construction of all those proceedings in his favour, I cannot discover any jurisdiction in the Court of Equity to afford relief. Nor can the conduct of Leslie, however justly it may subject him to the censure which has been lavished upon him, vary the rights of the parties in that respect. The bill must therefore be dismissed for want of jurisdiction.

With regard to the preliminary question, whether an appeal ought to have been sustained in this case, I feel no difficulty in saying, that if that question had been submitted in the first instance, the case ought not to have been heard. I think there is no rule which ought ° more rigidly to be adhered to than that an appeal ought not to be allowed from an interlocutory order. There is some difficulty in defining in terms so precise as is i-ii . . desirable what shall be' considered such interlocutory order as to preclude an appeal. But I think it may be laid down as a general rule, that an order which does not put a final end to the case, nor establish any principle which will finally affect the merits of the case, nor deprive the party of any benefit which he may have , , at a final hearing, ought to be considered an interlocutory order, from which no appeal ought to be allowed. In this case the defendant was, ordered to answer more fully. But that did not deprive him of the nefit of the answer which he had already put in. if a further answer had been unnecessary it did the party no harm, and therefore he ought to have complied with the order, and reserved his appeal until a final hearing, when perhaps it might have been unnecessary. The delay occasioned by allowing an appeal in every such case would be intolerable.' It is difficult, however, for the Court, in most cases, to ascertain the real merits of a motion, until one half the delay is occasioned which it is the object of the rule to avoid. The Court must therefore appeal to the good sense of the enlightened members of the bar, to assist in carrying their views into effect, when the principles are understood upon which appeals are to be brought up. It is the great interest of the community that business should be promptly dispatched, and it is not less the interest of the profession. There is nothing more true than the old maxim, that delay is the denial of justice. And although in this instance it is a question of but little importance, it has afforded an opportunity of laying down a rule to which tjje Court must hereafter pertinaciously adhere.

appeal lies from an interlocutory order, viz. p„thaafn¿not: end t0 the establish any will finally affect the merits of the case or paiiy^fany benefit he & ■

- An order to interlocutory,

A defendant cannot demur and answer to teit hut mayt_ to different parts of the bill.

An answer to the same part overrules the demurrer.

An answer whichputs merits in issue is sufficient,

Defendant discovery and demurto the

With regard to pleading in the Court of Equity, there is no rule better established, than that a person cannot demur and answer to the same matter. He may demur 0ne part and answer to another; but an answer to the 1 same part of the bill to which he has demurred overrules the demurrer. It is another general rule, that where a defendant answers he must answer fully. That is to . . . , say, he must answer all the material allegations m the hill. What shall be a sufficient answer, however, must always be a matter addressed to the iudgment of the J ° Court. An answer to so much ot the bill as puts the whole merits of the case in issue is sufficient. For instance, where the bill is for a discovery and relief, and the relief depends upon the discovery, he may deny the discovery and demur to the relief. It is not necessary however to dwell upon this part of the case, as the bill has already been disposed of. The decree of the Chance}jor mUst therefore be reversed, and the bill dismissed.

Decree reversed.  