
    Picket v. Morris.
    October Term, 1796.
    Practice — Instructions—Refusal—Error.—If the Court be applied to by either side to instruct the jury, or to reserve a point, or to direct a special verdict, it is error in them to refuse.
    Assignment — Discount—Waiver—Case at Bar. — I. being indebted to M„ afterwards obtains, by assignment, the bond of M. to an equal amount. He offers a discount, which M. declines, supposing he had an equitable objection to the payment of his bond in the possession of S. S. assigns over that bond to P. for valuable consideration, and without notice, under all the circumstances of the case, the conduct of M. was not a waver of his right to discount, and he was at liberty to off-set the bond of S. against his bond assigned to P.
    Equity Jurisdiction — Relief.—Wherever a case is fully and fairly tried in a Court of Law, the decision is so far binding, that it can only be examined by an appellate Court. — Chancery cannot interfere. But if the Court of Law refuse to decide points of law, or to reserve them, it will submit such points to the jury, and they decide inequitably, Chancery may interfere.
    In the year 1785, Morris, purchased from Dittlepage, the moiety of two thousand acres of land in Kentucky, at the price of £600, and give his bond for .£400, payable at a future day, and a note of hand for £200, which has been discharged. Johnson, had an equitable title to the other moiety of this land, under a former contract, but upon this condition, that he should allow Dittlepage, or those claiming under him, to take choice of either of the two tracts on paying the difference in value between them. In 1786, Dittlepage, assigned this bond to Stockdell, at which time, Morris, was a creditor of Stockdell by bond, in a sum, very little short of the amount of the one which he had given to Dittlepage. Stock-dell, proposed a discount of the two bonds to Morris, which the latter refused, in consequence of the pendency of a suit against him, Dittlepage and others, by Johnson, in the state of Kentucky, claiming a conveyance of an undivided moiety of the 2000 acres of land, instead of a separate tract, with the difference in value between such tract, and the first choice which Morris, by his contract with Dittlepage had a right to make. After this refusal, Morris instituted suit against Stockdell upon his bond, and recovered a judgment. Stockdell, assigned Morris’s bond to Picket, but whether before, or after the judgment obtained by Morris, does not certainly appear.
    Picket, instituted a suit upon this bond against Morris, in the County Court of Henrico. At the trial of that cause, the counsel of Morris offered Stockdell’s bond as a discount, and moved *the court to instruct the jury upon the law arising from the facts in evidence before them, or by other means to reserve the points for their future decision, and for this purpose, tendered a statement of the facts, requesting the court to alter them if necessary, so as to reserve the case. The court declined, or neglected giving any opinion upon either point.
    
      The legality of the discount; the equity of Morris against the bond in question; and the subject of notice to Picket of both or either of those objections, were subjects discussed before the jury; and the court refusing to interfere, they found a verdict for Picket, the plaintiff at law.
    The defendant Morris, moved for a new trial, (this being the second trial of the cause,) but the court were divided in opinion. Afterwards, a fifth magistrate, who had sat during the trial, came upon the bench and the motion was renewed, but was soon afterwards dropt. The defendant then exhibited a bill to the same court praying for an injunction, at which time, Picket, agreed to stay execution for a month, that the defendant might have an opportunity of applying to the Chancellor, for an injunction, which he afterwards did.
    Morris filed his bill in the High Court of Chancery, praying to be relieved against this judgment, principally upon the ground of the debt due to him from Stockdell, which had not been allowed him as a discount in the trial at law.
    Picket, in his answer to this bill, states himself to have been a fair, bona fide purchaser of the bond in question, without notice of any disputes relative thereto, or of the appellee’s right to any discounts. That he paid Stockdell for the said bond, in money certificates and other public securities, a sum exceeding the value of this bond, which excess, created a debt from Stockdell to him, which has been considerably encreased by other advances.
    Whether the County Court refused to grant the injunction applied for by Morris, or whether the motion was withdrawn in consequence of the offer made by Picket, of staying execution for a month, does not certainly appear from the record.
    One witness proves, that the appellant applied to him to know what objection the appellee had to the payment of this bond; the witness informed him that the appellee had discounts against it, and also mentioned the dispute about the Kentucky land: upon which the appellant replied, “that he would have nothing to do with the bond.” The witness does not state whether this conversation took place before or after the assignment, *but concludes from Picket’s reply, that it was prior to it. It does not appear when the assignment was made. The High Court of Chancery, upon a hearing of the cause, dissolved the injunction as to ^'36: 13: 3, with interest thereupon from August 1786, after deducting therefrom the costs of that court, and decreed the injunction to stand and be perpetual as to the residue, and that Morris should assign to Picket the judgment obtained by him against Stockdell; the bill as to Hittlepage was dismissed with costs. Prom this decree Picket appealed.
    Marshall for the appellant.
    The first question which I shall consider is, whether the appellant could at law, have set up his judgment against Stockdell, as a discount against the appellant. 2dly, Whether he can resort to a court of equity for the relief sought for by this bill.
    1st, The assignee of a bond, by the law of this state, is bound to allow all just discounts against himself, or against the obligee before notice of the assignment. The discount offered by the appellee, is a judgment obtained against a mesne as-signee, which I contend is not a case provided for by the act of Assembly. Morris’s bond, coming by assignment into the hands of Stockdell, could not be considered as being ipso facto discharged, in consequence of the latter being the debtor to the former to an equal amount. The reciprocal possession of each others bonds, did not amount to a payment of both, or of either. The one may be discounted against the other, unless the conduct of the parties hath prevented it.
    This is the difference between the actual payment, and off-setting mutual demands ; in the first, the bond, is discharged by the silent operation of law; in the latter, both debts subsists, until they are opposed to each other; for the parties may wave the discount if they please.
    In this case, Morris, evinced his determination not to discount, expressly, as well as, impliedly. He refused it expressly, when Stockdell applied to him for that purpose;, and impliedly, by bringing suit against Stockdell upon his bond, in which, if the-discount had been offered, he must have been nonsuited. And Stockdell, by assigning Morris’s bond to Picket, evinced a similar disposition in himself not to discount..
    After this, will it be contended, that Morris can reclaim his right of discounting, and that too, against a bona fide assignee-?’ But suppose Morris, was not deprived of’ this right by his own conduct, let us consider.
    2dly, Whether he can be relieved in this, court.
    *E)very point in this cause, has once been before a court of competent jurisdiction, and without a possible objection to the fairness of the trial, the jury have decided in favor of the appellant. If the-County Court gave an erroneous opinion upon the points submitted to them, or if they erred in refusing to give anjr opinion-at all, the power of correction belonged exclusively to an appellate court. But a court of equity has no jurisdiction in such a case. It cannot correct legal errors in an inferior court, or rehear and rejudge the judgment of a court of law. If Morris was aggrieved by the judgment of the County Court, he might have excepted and appealed. If the-justices refused to sanction the bill of exceptions by their signature, the law marks out a plain redress for the injured party. But instead of pursuing those steps, the ap-pellee voluntarily abandons them, and now seeks relief in a court of equity, upon the-very points, which had been fully discussed, and fairly decided upon in a court of law. If he can hope to succeed, it must not be by asserting the law to be in his favor, for that has been determined against him by the proper tribunal, and therefore, the law is with his antagonist, until that decision be reversed. He must then rely -altogether upon his claim to superior equity.
    Ivet the pretensions of the two parties upon this ground be compared. Picket, is a fair purchaser, for a valuable and full consideration, without notice of any objection. upon the part of Morris. On the other hand, Morris, had by his own conduct, completely discharged the bond in question from the danger of being discounted, against the debt due from Stockdell, to him. He refused the discount, as one of the depositions proves, for the unfair purpose of discharging his own bond in warrants, at a reduced price, and consequently for less than the real amount. He institutes suit against Stockdell, as an additional evidence of his having disclaimed the discount, after which, his bond is assigned. Can he now talk of equity, who by his own conduct has been the cause of the very loss, he is unwilling to bear himself, and now seeks to throw upon Picket? If he had done at that time, what he now insists upon, the bond in question would long since have been cancelled, and deprived of its ability to deceive the world.
    Perhaps an attempt may be made to excuse this conduct of Morris, on account of the equity against his bond, which is faintly relied upon in the bill. If this had been any thing more than a pretence, Morris, instead of waving the discount by bringing suit upon Stockdell’s bond, would have instituted a suit*in equity to be relieved against the payment of his bond, by which means, third persons would have been warned not to purchase it. But the decree of the Chancellor, by directing the difference between the two bonds to be paid by Morris, necessarily disallows his claim of equity on account of the Kentucky lands.
    I say nothing about the bill of exceptions, because not being signed, it contains no facts which this court ought to regard.
    Wickham for the appellee.
    I cannot agree, that Morris, has by any part of his conduct waved his right of discounting Stockdell’s bond against his own, or that he is precluded from asserting that right, as well as his prior equity against this bond, in a court of chancery.
    Morris purchased from Littlepage his choice of two distinct tracts of land, of a thousand acres each. He is afterwards sued in the state of Kentucky, by Johnson, who claims an undivided moiety of both tracts. Should he succeed, no two contracts can be more unlike, than the one made with Uit-tlepage, and that which would be thus forced upon him. The bond which he had given in part of the purchase money, comes by assignment into the hands of Stockdell, his debtors, charged ■ with this equity against it, and therefore, when Morris was applied to by Stockdell to discount one bond against the other, the former, very properly objected. He was not bound to offset a debt justly due to him, against one, which in equity he did not owe. Under this impression, Morris brought suit upon Stockdell’s bond as he certainly had a right to do.
    It cannot be denied, that Morris had originally an equity against Littlepage; but it was not necessary for him to disaffirm the contract, unless he pleased to do so; for if the damages to which he was entitled, should be equal to the debt due from him to Bittlepage, the one would discharge the other, and yet the contract remain valid.
    The next question then is, whether Morris, can in a court of chancery set up this equity, as well as the discount, against Picket, the assignee. As this point has been fully discussed in the case of Norton and Rose, it will not be necessary to repeat those arguments.
    But it is contended, that cross bonds do not discharge each other; that they only give an election to discount, the one against the other. This position may be very questionable. The words of the law are general enough to make any discount, a payment. *But if this be not the case, Morris may offer Stockdell’s bond as a discount against Picket, because it would have been a good one against Stockdell. The time when the discount may be made is not limited by the law, and therefore, may properly be offered when payment is demanded. The conduct of the parties in the mean time cannot defeat this right to discount, unless it amount to an express waver. I have endeavored to prove, that the refusal of Morris, did not amount to a waver. On the other hand, he retains Stock-dell’s bond in his possession, and as soon as he was properly called upon by Picket’s suit to make' his election, whether to discount or not, he then offered Stockdell’s debt as an offset. The institution of the suit upon Stockdell’s bond, was not an implied waver; by giving to the debt the security and dig-nitjr of a judgment, he did not thereby render it unfit to be made, an offset.
    But it is contended, that however the general question may be decided, a discount against a mesne assignee cannot be set up against the plaintiff in the action. I can see no good reason for this distinction; if it be correct, it is apparent that the most palpable injustice must follow. The obligor, knowing that his bond has come by assignment into the possession of a particular person, goes on to sell him property, or to make payments; will it be contended, that a subsequent assignment of the bond, will discharge it of those discounts which had once fairly attached upon it?
    If we must give to the law a construction so strict as to produce this effect, it will follow from the same mode of interpretation, that the negociabilit3' of a bond is at an end after one assignment, and of course, that Picket could not recover at law. The words of the law are, “that any person or persons may assign,” which if taken strictly, will only apply to obligee or obligees. But if under a liberal construction of the law, assignees may assign, the proviso as to discounts must be so far extended in its interpretation, as to be commensurate with the right to assign.
    The next question is, whether we can be assisted in a court of equity, after ■svhat has happened in the trial at law?
    It is objected, that the errors which the court committed, were only examinable bj’ a court of appellate jurisdiction. But in the case of Ambler and Wyld, (ante p. 36,) this court determined, that the Chancellor might relieve against a mere error in the court of law. In that case, the court improperly refused to admit certain testimony which was offered; the party aggrieved *by that decision might have excepted and appealed, but he did not. Your honors determined, that the inferior court were wrong in refusing the evidence, and that the party who was injured by the mistake of his counsel, in not excepting, might seek relief in equitjr. But this is a much stronger case than that. We do not complain of an erroneous opinion given by the court, but that they refused to give any opinion at all when applied to for that purpose. Instead of instructing the jury as to the law, they left a question of nicety and difficulty to be decided upon by them. If the jury undertook to determine upon a question which involved equitable matter, and were wrong in their opinion, surely their decision does not oust the court of chancery of its jurisdiction over the subject. It is obvious, that the counsel for Morris were misled, and the jury confounded by an enquiry into Morris’s equity against the bond, and Picket’s knowledge of it, before the assignment; whereas the single point to which the attention of the jury ought to have been directed, was, the propriety of discounting the bond due from Stockdell. As to the notice, the jury had nothing to do with it; it was a merely equitable question. The defendant was prevented from obtaining a new trial, from a mere accident, which it was not in his power to controul. It is every day’s practice, for the Chancellor to relieve against an injury, resulting from a mistake of counsel; as where he neglects to offer discounts, and the like.
    Having, I trust established the jurisdiction of the court of equity. I will proceed to examine the facts in this cause, and apply them to the principles which I have endeavored to maintain.
    If Stockdell had been the plaintiff at law, no question would exist as to our right to relief against him. It will also be conceded, that whether the equity goes along with the bond into the hands of an assignee, or not, he is liable, if he had notice of it before he has paid the consideration money. Nay, if he received it at a time, when it was in his power to save himself, he will be considered as a purchaser with notice.
    If Mr. Picket can be in a better situation than Stockdell would have been, he must not only be a purchaser without notice, but he must prove, that he gave a full bona fide consideration, and that he has paid the whole of it.
    I say, he must have paid a full consideration ; for if the assignor of a bond be liable to the assignee in case he cannot receive payment from the obligor, and less is paid for the bond, than its real nominal amount, it is usurious.
    *1 admit, that the answer of Picket contains strong general averments, that he paid the whole consideration before notice of Morris’s equity. But this general assertion is qualified by other parts of the answer, and when he is called upon to state the exact consideration paid for the bond, be refuses to do so, and contents himself with a round declaration that it was adequate. In opposition to this evasive denial of those material points, there is one witness, who thinks he gave notice to Picket of the equity of Morris, before the assignment was made. Independent of this, it appears by the answer that long after the assignment was made, and when it is not denied that Picket had notice, he went on to encrease the debt due from Stockdell, instead of saving himself and Morris with Stockdell’s property in his hands, which it was in his power to have done.
    There is then the testimony of one witness, opposed to the answer. Bet us see if there be not circumstances in aid of the former, sufficient to outweigh the latter. In the first place, the enquiry which the witness states Mr. Picket to have made would have been more naturally thought of before, than after he had paid his money. 2dly, The silence which the answer observes as to the date of the assignment. 3dly, The appellant’s having property of Stock-dell’s so long afterwards in his possession. 4thly, The judgment, which Morris had obtained against Stockdell in the very town in which Picket resided, which as to the discount, is strong presumptive notice. The judgment specifically bound the very subject in which Picket was dealing.
    Randolph on the same side.
    Morris has a two fold equity against Picket; 1st, his right to discount against Stockdell, and 2dly, his equity against Bittlepage on account of the Kentucky land. I shall not notice the first point here, as the subject has been fully discussed in the case of Norton and Rose. But I will make this observation as to the fact of notice; that where an answer is to prevail against the testimony of a single witness, it should be plain, candid, and clear of every appearance of concealment. This answer denies that the defendant knew of any disputes about the bond, instead of being responsive to the interrogatory, whether he knew of any objections to it by Morris?
    The question then, which is now to be considered is, whether Picket is liable to the discount claimed by Morris? It is admitted, that Morris knew of his bond 263 having passed into the *hands of Stockdell; he had therefore a right to keep up Stockdell’s bond, for the purpose of a discount.
    If Morris had once a right to oppose Stockdell’s claim, it should be shewn by what means he has lost it. It is said, that he has waved the right; first, by an express refusal, and secondly, by an implied waver. The reason which induced the refusal to discount was entirely justifiable. He had no objection to the discount in case he was really indebted to Stockdell. But the fact was otherwise; the bond which he held was charged with in equity against it, which might have destroyed its force altogether.
    As to the implied waver of his right to discount, I would ask whether the debt due from Stockdell was less binding, because the dignity of it was encreased? Or will it be contended, that a judgment cannot be set off against a bond, as well as one bond against another? The only proper time at which Morris could make an election which could be obligatory upon him, was when Stockdell, or his assignee should bring suit, and when that opportunity did occur, it was made in favor of the discount.
    But it is contended, that the act of Assembly does not apply to discounts against mesne assignees. The word plaintiff which is used by the legislature, obviously expresses the same thing as assignee would have done; and if this latter word had been used, it would have run through the whole string of assignees, however numerous they might be. The reason of allowing discounts, being to avoid multiplicity of suits, it applies as well to mesne assignee’s as to the one, in whom the right to the debt ultimately rests.
    The next question respects the jurisdiction of the court of chancery. Morris, as I before observed, had a two fold equity; one, which might properly have been decided upon at law; but the other, which respected the Kentucky land, was a question, which, belonged exclusively to the court of chancery. If the latter had been the only ground of the application to that court, no one could have denied its jurisdiction. But it is well known, that if that court will entertain the suit at all, it will decide the whole case, though involving points properly determinable at law.
    Discounts, are not less a subject of equitable jurisdiction, because they may also be determined at law. Until the statute, the parties were driven into that court to obtain the benefit of discounts, and the jurisdiction is not ousted by its being concurrent *with the courts of law. Independent of these considerations, there was not only' mistake, but accident in this case. The counsel were evidently led off from the true point of discussion, into an enquiry about notice, which was entirely unimportant, and from this cause it probably was, that they neglected to file exceptions to the opinion of the court. It was accident alone which prevented a new trial from being granted upon the first application, and the offer of Picket to wait a month, until Morris could have an opportunity of obtaining an injunction, allured the latter from his purpose of renewing the motion.
    Marshall in reply.
    Whether the equity attached to a bond follows it into the hands of the assignee or not, is a question I mean not to argue, because, I consider it to be unimportant in his cause. If Iyittlepage himself had been plaintiff, he could not have been opposed by this equitable objection. The only evidence of his equity is, the answer of Lfittlepage, a bill filed in Kentucky concerning this land, and a paper signed by Johnson, who contests the right of Morris to a fulfilment of I/ittlepage’s contract. But none of these papers can be considered as evidence of the fact.
    If then Morris had in reality no equity against this bond, his refusal to discount, was an absolute waver of his right. It is said that there is no time limited, within which the election to discount, or to wave it, is to be made, and that he might use it at the trial. I do not contend that he was bound to make it sooner, but if he expressly refuse before the trial to make it, and in consequence of his doing so,-, his bond is assigned away to a fair purchaser, he is bound by it, and cannot afterwards reclaim his right to discount. The reason assigned by Morris for his refusal was not real, but a mere subterfuge, used for the purpose of enabling him to purchase up his own bond for less than its value, and therefore it cannot qualify that, which I term an express waver.
    I do not say, that the bringing suit upon Stockdell’s bond was of itself a waver, or that the judgment could not be made an offset; but it is evidence of his mind upon the subject, that the discount was not to-take place; for if it had, Morris must have-been nonsuited, as the bond due from him-, to Stockdell, amounted to a greater sum than what was due to him.
    I have contended, that by the literal words of the act, the defendant cannot set up a discount against an intermediate as-signee; to which it is answered, that if the law be thus strictly interpreted, a bond can be assigned but once. I cannot clearly comprehend the-justness of this conclusion, for it is plain-from the words of the law, that any person or persons having the legal title may assign, which must mean, more than one assignment.
    If payments be made, or if property be sold toan intermediate assignee, this would be an actual discharge of so much of the bond, and might be given in evidence without the aid of the proviso; but this is very different from a discount, which could not be made were it not for this law.
    If Morris could not have set up the-discount at law, there is an end of the cause. But if he could, he cannot now resort to a court of equity to get the benefit of it. The whole case-has once been tried and decided upon before a competent jurisdiction. I contend,, that the same question cannot be re-examined and rejudged in any but an appellate court. I am now speaking of the discount alone. The case of Ambler and Wyld, does not sustain the jurisdiction of the court of' chancery as now contended for. In that case, material testimony was not permitted to go to the jury, and ot course, the whole case was not before them, nor decided upon by them. This court declared, that if the whole evidence had been laid before the jury, the decision would have been otherwise. In this case, nothing was kept back ;■ the question which we are litigating here, is the very same which was contested and decided by the jury with the very same evidence which is exhibited to this court.
    It is said, that the counsel and jury were entangled with a question which was unimportant, and by that means they were reduced from the true point in the cause. This is mere conjecture, and is not warranted by any part of the record. But if it were, I do not agree, that the mismanagement of counsel, or the misconceptions of the jury will give jurisdiction to a court of equity, over a subject which has been fully examined and decided upon by a jury.
    It is said, that the court of chancery had an original jurisdiction as to discounts which is not ousted by the statute. This is admitted, and it then follows, that the courts of law and equity have concurrent jurisdiction upon that subject.
    It will I presume be admitted, that those courts have also concurrrent jurisdiction in matters of account; but because this is the case, will it be contended, that if a suit be brought at law upon an account, and a decision be there had, the very same subject may be re-examined in a court of equity? As well *might a court of law rejudge a case decided upon in equity, under the plea of concurrent jurisdiction.
    As to all the other pretences for giving jurisdiction to the court of chancery, they are mere conclusions of the counsel, without being warranted by the record; such are the supposed blunders of the counsel in discussing the equity, instead of the law of the case; in their being dazzled by Picket’s offer of waiting a month, and being thereby put off from their first intention of moving for a new trial.
    It is contended, that Picket had notice of Morris’s discount. This is not proved; but if it were, and if he also knew that Morris had rejected the discount, he certainly would not have been bound to admit it. Neither is there any evidence, that Picket had it in his power to save himself; or that there was any thing like usury in the transaction. These, are points not stated in the bill, and therefore could not be noticed by the court, even if they were proved by the evidence.
    As to Morris’s judgment, it could not be even implied notice to Picket, who was not privy to, or bound by it. But there is the slarongest reason to believe, that the judgment was obtained after the assignment; for if it had been otherwise, it is highly probable, that Stockdell would have offered Morris’s bond as an offset.
    The Court desired this cause to be spoken to again, upon the point of jurisdiction.
    Duval for the appellee.
    The conduct of the court in refusing to seal the bill of exceptions, prevented Morris from appealing, and produced an injury, against which a court of equity may relieve. I admit, that the statute points out a mode of proceeding where the court refuse to seal a bill of exceptions ; but it does not follow from thence, that equity may not exercise a concurrent jurisdiction over the subject, and prevent the injustice which must result from an unfair trial, or one, where the parties have not been fully heard, and where the judgment is apparently wrong. 3 Morg. Ess. 291, proves, that a court of chancery will interfere, if the jury be misdirected. So if the court refuse to direct the jury, and they find an inequitable verdict, the Chancellor may with propriety interfere. After many new trials have been granted at law, this court will for the furtherance of justice grant another. 3 Morg. Ess. 91.
    * Wickham. I think, that the jurisdiction of the court of equity in this case may be maintained, as well upon the general principle and constitution of that court, as upon the decisions of this court on similar cases,.
    If a want of jurisdiction appear upon the face of the record in proceedings at common law, the judgment may be arrested, or reversed. But in chancery causes, the jurisdiction must be specially objected to by plea. It may be said perhaps, that this bill gives jurisdiction to the court,- and that therefore no plea to the jurisdiction could have been properly put in. But since all the material allegations in the bill are-proved, the court must retain its jurisdiction, if the bill gave it; if it did not, then it ought to have been objected to by plea.
    If the appellant had meant to oppose the relief prayed for, because of the judgment at law, he should have pleaded it in bar, and by answer denied the equity stated in the bill. The County Court when called upon to instruct the jury as to the evidence, and to determine whether the discount which was offered by Morris, was legal or not, refused to give any opinion at all, improperly submitting to the decision of the jury, a legal question which it was the duty of the court to have determined.
    The case of Ambler and Wyld, comes fully up to this. The question in that cause was whether the referees had valued the house in specie or in paper money. The original valuation could not be found, and therefore the referees were examined upon that point, who declared, that they had a specie valuation in view. The whole case turned upon their evidence, and Wyld, was prepared with testimony to prove, that the valuers had made declarations on the subject, the reverse of what they then deposed. But the County Court before whom the cause was tried, refused to suffer the witnesses to be examined, this court determined that they were wrong in that opinion, and that where the decision of the inferior court was manifestly erroneous, the omission of counsel to file a bill of exceptions, should not bar the jurisdiction of the chancery. The Chancellor said, that if this evidence had been heard, the verdict might have been different. But the ground of the injunction could have been no other, than the error committed by the court, in refusing the examination of the witnesses.
    If we refer to British decisions, they will abundantly prove, that equity may grant relief, although the matter has been decided at law.
    *In the case of Graham v. Stamper 2 Vern. 146, the defendant in equity pleaded the verdict and judgment at law and that the defendant had insisted upon the same matter at law, where it was ruled against4 him, and demurred. But this was not thought sufficient to bar the relief prayed fot, and the plea was overruled. So in the case of Robinson v. Bell 2 Vern. 146, the ground of the bill was, that the plaintiff’s attorney had by mistake, and contrary to instructions, pleaded a general, instead of a special plene administravit. The court relieved against this mistake although the bill did not state, that the discovery was made before the judgment.
    If such be the decisions in England, there is a much stronger reason, why a court of equity should be more liberal in granting relief in this country, in cases, which have been decided in the County Courts. The want of legal knowledge in those courts, and the loose manner in which business is generally conducted there, will frequently produce improper and unjust decisions of cases, which in many instances could only be remedied in a court of equity. A distinction of this sort is even warranted by English cases. In Einch Ch. cas. 472, we find that relief was granted against the judgment of an inferior court, on account of improper ■conduct, and a distinction is taken between the decisions of such courts, and those of the superior courts.
    Another ground of jurisdiction is the mistake of the jury. The only question was if the debt had been paid : and if the court had determined as they should have done, that the discount offered by the ap-pellee was proper, the verdict must have been different from what it was; yet this opinion of the court was withheld. The jury were led to believe, that the material point in the cause was whether Picket was a purchaser, with or without notice, and not being satisfied that he was the former, they found for him. I know, that in Ambler and Wyld it was said by the court, that if the whole evidence had been left to the jurj', the decision would have been otherwise. But it will be noticed, that in this case, the error committed by the jury was in the law of the case.
    A court of equity will relieve against an award, if there be an evident error on the face of it, or if the arbitrators have mistaken the law of the case. A verdict is not more solemn nor more obligatory upon the parties than an award. This court have gone into the recesses of a jury room, to get evidence of the irregularity and mistake upon which the verdict was given. (Cochran v. Street, ante vol. 1, p. 79.) In (M’Rae *v. Woods ante p. 80) the jury considered the plaintiff as entitled to half the ticket; but from the evidence, it was clear, that if he were entitled to any part, it could not be to more than a fourth; yet this court sustained the decree of the Chancellor, which awarded a new trial.
    It may be contended that Morris’s attorney might have renewed his motion for a new trial. There is some obscurity upon this subject, and it can only be cleared up by supposing that his counsel was led off from his purpose of doing so, by Picket’s offer to stay execution until he could apply for an injunction. It appears, that after a fifth magistrate came upon the bench, the motion was renewed, and then abandoned. But to make the most of this, it wa°s a mistake of counsel, against which this court may relieve.
    Randolph. Let us consider this as an original case in the court of chancery; that Morris had there filed his bill against Picket, calling upon him,to surrender the bond, on the ground of his original equity against it, or because of the discount; or if the ground of the bill had been, that Picket might have saved himself out of Stockdell’s property, and had failed to do so; in all these cases, the court of equity would have had compleat jurisdiction. So it would, if the bill had called upon Picket to discover how much he had paid for the bond; Por if Stockdell could have sought relief against an unconscionable, or usurious bargain, (which will not be denied,) it is equally clear that Morris possessed the same right.
    What then is to bar us from this equitable relief after a decision at law? If a verdict be rendered after a full and fair trial upon the law of the case, I admit, that the inter. ference of the court of chancery would be improper. But if the cause be mixed with a question of equity, where the jurisdiction is concurrent, as in cases of fraud discounts and the like, and a wrong decision has been given, Chancery will interfere and relieve, although the same points have been pressed at law.
    A court of equity will entertain a suit in the case of a lost bond, although there is also a remedy at law, 3 Durnf. and Past 151.
    The case of Kent v. Bridgman Prec. in Ch. 233, establishes this principle; that where there is concurrent jurisdiction, tho’ the party at law attempted to avail himself of a point proper for the determination of that court, and failed, yet he might seek relief in equity. Now, although the whole case in Kent and Bridgman was not submitted to the jury, and therefore an attempt *may be made to distinguish that case from the present, yet it is obvious, that the ground of the decision was not the failure to produce the judgment, but the fraud, which was examinable in equity as well as at law. The Chancellor sustained the cause upon the ground of a concurrent, and not of an appellate jurisdiction.
    Marshall. The principle which I have endeavored to maintain is this; that when the whole question has been completely before the jury, accompanied by no circumstance which could prevent a full and fair decision of the case, by that body, there is no remedy but in an appellate court. If the party apply for relief to a court of equity, he must rely upon other ground than legal errors in the decision complained of. Let all the cases which have been cited be examined, and it will be found in each of them, that the whole case was not decided upon by the jury. In 2 Morg. Ess, 291, the jury did not decide upon the discounts. 3 Morg. Ess. is no ways applicable.
    In the case of Kent and Bridgeman, {here was an equity which was not determined at law; there was a fraud practised and proved, but still the party could not recover at law, without a copy of the judgment; of course, the subject of the fraud was not tried at all, and the jury .were directed to find for the plaintiff, because the judgment was not produced. This is precisely within the rule I have stated.
    It is then contended, that if it were intended to object to the jurisdiction, it should have been done by plea. This is founded I suppose upon the act of 1787, which declares, “that after answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made &c.”
    The construction of this law must necessarily be restrained to cases, where the bill shews a right in the plaintiff to recover. Eor where the plaintiff has no right at all, and if he be barred by a judgment at law, it is not necessary, nor would it be proper to plead to the jurisdiction. Such a plea admits the right of the plaintiff, but denies the power of the court to decide upon it. Thus, if a suit in chancery be brought upon a bond; the plaintiff having a right to recover, the defendant must apprise him in an early stage of the cause, that he means to object to the jurisdiction of the court. But if by the plaintiff’s own shewing, or otherwise, it appears that the bond has been paid off, or that he had brought a suit at law upon it, and a verdict *and judgment had passed against him; would a court of equity be bound to decree in his favor, because there existed an objection to its jurisdiction, which had not been taken advantage of by plea?
    It is said, that the defendant should have pleaded the judgment in bar. But this is not necessary, where the same matter is stated in the answer, and is also relied upon in bar; or if (as in the present case, the plaintiff himself states the judgment in his bill. In Ambler and Wyld, the whole case was confessedly not before the jury; for the court would not permit them to hear all the testimony which was offered.
    In the case cited from Pinch. Ch. Cas. 472, the court had no right to decide at all for want of jurisdiction, so that in fact, there was no judgment.
    In 2 Vern. 146, there was a secret equity, of which the defendant could not avail himself at law; for the court was not at liberty to enquire into the legal error, whilst the question was depending in a superior court. In the case now before the court, there is no equity unmixt with law, since the discount might have been made at law. In the case last cited, the mistake was not triable at law, and of course, it was not enquired into nor decided updn by the jury. The case of Bosanket and Dashwood, Talb. 90, was a suit to be relieved against an usurious contract.
    If the jury mistook the law as to the discount, it does not from thence follow that a' court of equity can interfere; for if so, every error of the common law courts may be re-examined and rejudged in this court. In the case of Cockran and Street, this court did not set aside the verdict because it was wrong, but because a part of the jury had been imposed upon by the others.
    As to the power which it is said Picket had to save himself, there is no proof of it.
    I am at a loss to comprehend the distinction which is taken between cases of a merely legal nature, and such as are mixed with equity. I admit that in the latter case, the two courts have concurrent jurisdiction, but if the whole subject be decided in the court of law, equity can no more reexamine it, than the courts of law in a similar case could re-examine a decree of the court of chancery.
    I admit, that a suit may be brought either at law or in chancery, where a bond is lost. But if it be decided in either court, the other cannot interfere.
    
      
       Practice — Instructions—Refusal—Error.—To refuse relevant instructions which rightly propound the law, is error in the court below, for which the judgment must be reversed. 4 Min. Inst. (3d Ed.) 1084, 1085, citing -Picket v. Morris, 2 Wash. 255; Brooke v. Young, 3 Raud. 106: Dimmett v. Eskridge, 6 Munf. 311; Wells v. Washington, 6 Munf. 532; Early v. Garland, 13 Gratt. 9, 14: Baltimore & O. R. R. Co. v. Laf-fertys. 14 Gratt. 486-87; Smith v. Carrington, 4 Cranch 62.
      The principal case is cited with approval in Gordon v. City of Richmond, 83 Va. 439, 2 S. E. Rep. 729; Brooke v. Young, 3 Rand. 112; Osborne v. Francis, 38 W. Va. 323, 18 S. E. Rep. 595. See Shelton v. Cocke, 3 Munf. 191, and monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
    
      
       Assignment — Assignee Takes Subject to Equities.— The assignee takes the bond, not only subject to all discounts, according to the terms of the statute, but to all equities to which it was subj ect in the hands of the obligee. Garland v. Richeson, 4 Rand. 269, citing Norton v. Rose, 2 Wash. 238; Picket v. Morris, 2 Wash. 255; Stockton v. Cooke, 3 Munf. 68. The principal case is cited in Cabell v. Rogers, 6 Rand. 582. See foot-note to Norton v. Rose, 2 Wash. 233, and Wythe, p. 50.
    
    
      
       Equity Jurisdiction — Relief.—The principal case is distinguished in Terrell v. Dick, 1 Call 550, 551.
    
   *ROANI3, J.

Wherever a case is fully and fairly tried in a court of law-, the decision is binding upon the parties, and a re-examination of the cause in a court of equity is certainly improper. The parties, by submitting to the decision of that tribunal, must be governed by it, whether it be right or wrong. But this principle will extend to no case, where there has not been a fair trial, as well as a full discussion of the cause.

In this case, the appellee at the trial in the County Court, offered the bond of Stock-dell, as a discount against the demand, which ought certainly to have been allowed. Por I cannot consider any part of Morris’s conduct, as amounting to a waver of his legal right to insist upon the offset. His refusal at one time to admit the discount, is satisfactorily accounted for. He had strong reasons for believing, that he might oppose the payment of his bond to Stockdell, by the equity growing out of the original contract for which that bond was given.

It appears that the counsel for Morris, moved the court to instruct the jury, that the discount was proper; this they refused to do, as well as to recommend a special verdict. In consequence of this improper conduct in the court the jury found a verdict most obviously against the very right of the case. Por I hold it most clear, that either party has a right to demand the opinion of the court, upon questions of law which may arise during the trial of a cause. Their superintendence in explaining and deciding legal questions, is essential to the proper administration of justice, and ought to be exercised, when either party require their interference.

The second motion which was made for a new trial, was not over-ruled by the court, but for some reason or other which does not certainly appear, it was abandoned by the defendant. Although there is no testimony in the cause leading to a suspicion that Picket’s offer to stay execution until an injunction could be applied for, proceeded from an improper motive in him, yet it is highly probable, that it tended to divert Morris, from his purpose of persevering in the motion.

I think the decree ought to be affirmed.

CARRINGTON, J.

ft would perhaps seem strange, that a court of equity should not possess the power of relieving against a judgment at law, obviously unjust, and against the right of the cause. In cases of fraud, surprise, accident, trust and the like, where that court has complete jurisdiction, it is within its peculiar province to grant relief, where the parties cannot ^obtain it at law. It is true, that the party asking for its interposition must shew himself entitled to equity superior to that of the person who has uncon-scientiously obtained the advantage at law.

I admit, that the courts of law and equity should be confined within their proper spheres, and that the line which separates their respective jurisdictions should be carefully guarded. With equal jealousy would I watch over and preserve from violation the trial by jury. But it is not less important, that the court should exercise those functions which properly belong to them. To the former, belong the uncon-trouled power of deciding upon facts and even upon the law if it be submitted to them. The province of the latter, is to determine upon those legal points which come properly before them. It is therefore the duty of the court to instruct the jury upon the law when they are required to do so, or to reverse the point if either party desire it. If the opinion of the court be wrong, there is then a way to get it corrected. If the opinion be right, and yet the jury disregard it, the court may preserve its privilege by setting aside the verdict.

Can it be contended, that this cause was fully and fairly tried, when the only important part of the appellee’s case was not decided upon by the jury? When the court refused to state to the jury the law as it respected the discount, they as effectually excluded it from the consideration of the jury, as if they had done it in express terms; for though it was laid before the jury, yet it was a question proper for the decision of the court, and their refusal to give that decision, kept it out of the view of the jury as the verdict evidently proves. The jury were then mistaken in the law, and being involved in unimportant discussions upon points no way relative to the cause, they were allured from the only one which was material.

Independent of this, it is clear that the parties were surprised into the abandonment of their first intention of moving for a new trial, by the offer of Picket to stay execution until an injunction could be applied for. It cannot be questioned, but that equity may relieve against the mistakes of a jury, as if they miscalculate, or omit to allow discounts to which the party .injured can prove himself entitled.

I think that the case of Ambler and Wyld, is not distinguishable in principle from this. That cause was determined before a court of competent jurisdiction, but it'was determined improperly. The party aggrieved might have appealed, but he did *not; yet this court decided, that equity might relieve him against this erroneous judgment of a court of law.

In this case, it is apparent, that there was a struggle for a general verdict, and that the law and right of the case was stifled in the conflict. -

I think the decree right and that it should be affirmed.

LYONS, J.

There have been three questions made in this cause; the 1st, has been decided in the case of Norton and Rose. The 2d is, whether the conduct of Morris has not deprived him of the discount, of which he now endeavors to avail himself. 3dly, Whether, if he be entitled to the discount, he can have the benefit of it after the verdict and judgment against him.

Upon the 2d point, it is contended, that Morris having once refused to admit the discount, he has thereby waved his right to assert it against a bona fide assignee. How far an unqualified refusal might have bound him, it is unnecessary to decide, because I am clear that his conduct did not amount to that. Whether the equity under which he sheltered his refusal to discount was well founded or not, is not material; it was evidently the cause of his refusal, and it cannot from the circumstances which attended it, bb considered as a mere pretext to avoid the discount. There was at the time', a suit depending in the state of Kentucky, the event of which he could not possibly foretell. This is sufficient to repel' the presumption of an intention to wave. Under these circumstancs, it was a fraud in Stock-dell to assign the bond without giving notice of the discount which Morris had against it. Whatever may be‘the equity of Picket, that of Morris was prior, and equal to it, besides which, he had a legal right to. set up his discount. But in fact, Picket: .must be considered as standing in the ¡shoes of Stockdell, since it was his duty to> have enquired of Morris respecting the-bond, before he took the assignment of it.

There can be no doubt then of Morris’s, right to relief, unless he be barred of it by the verdict and judgment at law, which, brings me to the consideration of the third point.

If what I have before stated be correct, it is clear that Morris has a sufficient discount' against the claim of Picket, both at law and in equity. But it is contended, that he cannot now obtain the benefit of the discount, because he has lost the opportunity which he once had of availing himself of it at law. But I would ask, when it was, that this opportunity presented itself? At the trial of the cause at law, he claimed the discount and it was rejected. Considering the question as a legal one, *he prayed the opinion of the court upon it, or if they doubted, that they would recommend a special verdict; they refused to do either. He then tendered a bill of exceptions, which they would not sign. He was equally unsuccessful in obtaining a new trial. What more could he have done? The Superior Court could not relieve him, because nothing was spread upon the record which could avail him there. If he had applied for a mandamus, or pursued any other method of obtaining relief save the one he did, an execution might have issued, and he must have experienced in the mean time the effect of an unjust and inequitable verdict. And is it possible that a right thus, clearly established, should be destitute of a correspondent remedy? I thought it was the peculiar province of a court of chancery, to afford relief, in cases where competent remedy could not be afforded some where else.

I admit, that in this case the party had complete remedy at law and if the cause had been fully and fairly decided there, equity would not have interfered. But this was not the case. The refusal of the court to decide upon the points which were properly submitted to them, prevented a just determination ■ upon the only important question in the cause; and their subsequent refusal to seal the bill of exceptions, shut out the parties from the proper tribunal tee have corrected them. Suppose the jury should obstinately decide against the opinion of the court upon a point of law, or should disregard their recommendation to find a special verdict; there could be no relief in a court of law against two improper verdicts, as a second new trial could not be awarded. Would it not be monstrous to say, that in such cases, a court of equity could not afford relief?

The Chancellor urns not bound to grant a new trial, because being in possession of the whole case, there was nothing to prevent a final decision.

The case -of Burrows v. Jemino, 2 Str. Rep. 733, the Chancellor relieved against a judgment, upon a point, which he was of opinion the court of law ought to have de'Cided in favor of the plaintiff in equity ; but he observed, “thatother judges might have been of a different opinion.”

Ambler and Wyld is nearly parallel with ■this, for in that case, as in this, the mischief complained of arose from the error of the court. But there is this difference between them which renders this a stronger case; in that, the party might have appealed ; in this he could not, because the bill of exceptions was not sealed.

*This is certainly a hard case upon Picket, but he who trusts most, must ■submit to bear the consequences of his misplaced confidence. •

Decree affirmed.  