
    *Maupin v. Whiting.
    [Wednesday, April 25th, 1798.]
    Answers — Responsive to Bill — Effect.—The answer of the defendant, when responsive to the bill, is conclusive, unless disproved.
    Legal Defence — Where Should Be Made. — If the defence be purely legal, it should be made on the trial at law.
    This was an appeal from a decree of the High Court of Chancery. The bill stated, that a replevy bond, purporting to be entered into by the plaintiff, as security for John Whiting, (and which had been assigned to •Maupin,) was not the act of the plaintiff. That, about fifteen months after its date, Maupin informed the plaintiff that he had such a bond. That the plaintiff, with astonishment, informed Maupin that -he had never executed it, or heard of the execution before. That, about two months afterwards, he met with the Deputy Sheriff, by whom the execution and bond were returned, and was persuaded by him not to mention the transaction, as he said that he, would not have such a’n affair to come before the Court for an hundred pounds; that the plaintiff told him, he would not make any stir in it, unless an execution should come against him. The bill, therefore, prayed an injunction to the bond; and the Deputy Sheriff was made a defendant to the suit. The answer of Maupin stated, that, not fifteen months after date, he shewed the bond to the plaintiff, who said it was not his hand-writing; but, from the manner of expressing himself, he did not suppose the plaintiff would contest it, or deny that the subscription was with his consent and approbation. That he was the more induced to think so, as the plaintiff was the only son of the principal obligor, who was wealthy and of a fair character. The answer of the Deputy Sheriff stated, that the commissioners having approved of the plaintiff as security for his father, and the defendant reposing confidence in the father, entrusted him with the bond to get the signature of the plaintiff, who was absent, That the father afterwards returned the bond to the defendant, with the plaintiff’s name subscribed. That, the 225 plaintiff afterwards ^denying the signature, the defendant said he would sue the father in order to secure himself. Whereupon, the plaintiff said it might hurt his father’s feelings, and that he supposed he must be his security. On which, he acknowledged the signature to be his hand and seal. The cause was heard on the bill and answers in the Court • of Chancery; where the injunction was made perpetual. Prom which decree Maupin appealed to this Court. , , .
    Wickham, for the appellant.
    The plaintiff, indeed, states that he did not subscribe the bond; but, Maupin says, he did not appear to dispute his liability; and, the Deput3r Sheriff says he acknowledged it, which is responsive to the allegations of the bill. The Deputy Sheriff’s testimony is admissible, because he has no interest in questions of this kind. It is his duty to take the bonds, and in practice, he is generally the only witness to them. But, the conduct of the plaintiff charges him, because he did not give fair warning. He should have denied it at once; but, he did not, and from his own shewing, he intended to conceal it. This might have been no objection at law, but it certainly is in equity; for, it was a fraud upon the defendant. The plaintiff had no pretext for applying to a Court of Equity. He should have pleaded non est factum, and submitted the legal question to the Court of Daw. It is analogous to a case in this Court, in which a supersedeas from the District Court, to an execution in a County Court, was quashed; because, the County Court might have given redress. I , \ . | , \ , , ' t ( [ I ; [ ; ;
    
      
       Answers — Responsive to Bill — Effect.—lu Robinson v. Cathcart, 20 Fed. Cas. 990, it is said: “When the plaintiff has replied to the .answer, and the cause is at issue, I presume it will not be denied that the answer is evidence for the defendant, so far only as it is responsive to some allegation in the bill. If this position be denied, I refer to Beckwith v. Butler, 1 Wash. (Va.) 225; Hoomes v. Smock, 1 Wash. (Va.) 389; Chapman v. Turner, 1 Call 286, 288; Maupin v. Whiting, 1 Gall 224, 226: Pryor v. Adams, Id. 382, 394; Bullock v. Goodall. 3 Call 44; Auditor v. Johnson, 1 Hen. &M: 537, 542; Dangerfleld v. Claiborne, 2H. & M. 17; Page v. Winston, 2 Munf. 298; Scott v. Gibbon, 5 Munf. 86; Thompson v. Strode, 2 Hen. & M. 19; Leeds v. Marine Ins! Co., 2 Wheat. (15 U. S.) 383; Young v. Grundy, 6 Cranch (10 TJ. S.) 51; Hart v. Ten Eyck, 2 Johns. Ch. 87; Ringgold v. Ringgold, 1 Har. & G. 28. I do riot remember that I ever heard this point controverted, and I am sure that it has been considered' by this court as completely settled for more than twenty years." The principal case is also cited in foot-note to Shurtz v. Johnson, 28 Gratt. 657. See also, foot-note to Thornton v. Gordon, 2 Rob. 719; Heffner v. Miller, 2 Munf. 43: Wilkins v. Woodñn, 5 Munf. 183.
    
    
      
      Equity Jurisdiction — Defence at Law. — Where the defence is purely .legal it should be made on the trial at law. For this proposition the principal case is cited and approved in Meredith v. Johns, 1 H. & M., 597; Mason v. Peter, 1 Munf. 445; Turpin v. Thomas, 2 H. & M. 145.
    
   PER CUR.

The cause having been heard in the High Court of Chancery, on the bill and answers, and those answers, which are responsive to the bill, stating, that although the appellee might not have originally put his name to the bond, yet he after-wards acknowledged the signature to be his hand and seal, by which he was bound at law; or, if he was not' so bound at law, it L , ! ; I : i was á legal defence of which he should have availed himself upon the motion for judgment on the bond, and not have re-226 sorted *for relief, on that ground, to a Court of Equity, where the case is to be decided upon its real justice, and not on the omission of strict legal ceremonies, the appellee, in that view of the case, had no pretense of equity; especially against Maupin, the innocent purchaser of the bond, without notice of the alleged defect. Consequently, the decree of the High Court of Chancery is erroneous, in affording the relief sought by the appellee. It must, therefore, be reversed, and the bill dismissed with costs.  