
    Pryor v. Adams.
    [Thursday, October 25, 1798.]
    (1 Am. Dec. 533.)
    Equity Jurisdiction — Discovery.— The Court of Chancery has jurisdiction in all cases where a discovery is wanting'.
    Same — Colorable Suggestion — Practice.—Mode of proceeding on the part of the defendant, where a ' merely colorable suggestion is made, in order to-give the Court of Chancery jurisdiction.
    Equity Practice — Direction of Issue. — The Court of Chancery should judge on the proofs before it, and in a clear case, decree thereon, without directing an issue.
    Paper Money. — Payments in paper for debts due before 1771, good.
    Chancery Court — Plea to Jurisdiction. — Plea to the jurisdiction of the Court of Chancery, how tried.
    This was an appeal from a decree of the High Court of Chancery. The bill states, that the defendant was indebted to the plaintiff as surviving partner of Adams & Parke, in 661. 7s. lOd. specie, with interest from the year 1774, when the bond was given, amounting to 161. 14s. That in the year 1780, the defendant insisted to discharge the said bond, and applied to Street, the plaintiff’s agent, to receive payment thereof in paper money: who refused, unless the defendant would agree to pay the depreciation. That the defendant undertook to do so, and in Eebruary, 1780, paid through the hands of Brand, 831. Is. in paper money, worth only when reduced by the scale, 11. 17s. specie. That neither the plaintiff or his agent would have received the same, if the defendant had not promised to make good the depreciation, whenever a general scale should thereafter fix the same. That the defendant now refuses to pay, s ‘pretending, that as the plaintiff was so credulous to give up the bond on his 383 promise to pay the depreciation, *that he could not compel him to fulfil his said engagement, or prove the same but by the oath of the defendant.” The bill, therefore, in the usual form, prays that the defendant may answer the premises: Interrogates him relative to the facts: Asks a decree for the balance of the money, after deducting the payment aforesaid, reduced by the scale: And concludes with a prayer for general relief.
    The defendant demurred to the jurisdiction of the Court, because the plaintiff’s suit was brought upon an assumpsit, which, if made, was cognizable at common law; and, by way of answer, he refers to Street’s certificate, to shew the payment of the money; denies the promise to make up the depreciation, or that he made any other promise than the following: “That if the •depreciation was generally made up, so that the defendant could recover it from his -debtors, he would make it up to the said Street.”
    The deposition of Hopkins states, that he was called on in February, 1780. by Street, -to take notice, that if the said John Street would receive a sum of money, due on bond to Adams & Parke from Pryor; that he, Pryor, agreed to make good the depreciation, if any depreciation should ever be demanded; and that Pryor agreed thereto in the presence of the deponent.
    Brand says, that he paid off and took up the bond, which he can’t find; and that Street told him, Pryor was to pay the depreciation, if customary.
    Street, (whose deposition was rejected in the High Court of Chancery because he was interested), says, that the defendant told him, if he would receive the money of Brand, and any depreciation was paid by any one, that he, the defendant, would pay it likewise. That he received it upon those terms and no other. That Hopkins was called on as a witness to the agreement. That, as well as he remembers, upon a conversation betwixt him and the defendant, some time afterwards, relative to an enquiry made by the defendant of 384 him, the ^deponent, in whose hands the bond was? and on being told that it had been given up to Brand, (with whom the defendant seemed displeased,) under the agreement aforesaid, the defendant answered, whoever had the bond had a right to the depreciation, and that he would rather the deponent should have it than Brand, who had denied his having the bond. That the deponent asked the defendant, if Brand did not claim the depreciation, if he would pay it? and that he answered, he had rather the deponent should have it than Brand. That Brand afterwards told the deponent, that he would give up his right to the depreciation to Parke’s estate.
    The second deposition of Hopkins states, that Street called on him to take notice, that Pryor agreed to pajr the depreciation on the bond, and that Pryor answered very well, and turned off.
    In May, 1792, the Court of Chancery dismissed the bill, with costs, upon a hearing; but, at the same term, set aside that decree, and directed an issue to be tried before the District Court of Richmond, to determine, “whether the defendant, at the time the money paid in discharge of the bond in the bill mentioned was received, or after, agreed to allow the depreciation?”
    The jury found, that the defendant did agree to allow it.
    The Court of Chancery, upon the verdict being certified, decreed the defendant to pay to the plaintiff 661. 7s. .with interest from the 3d day of January, 1780, and the costs. Prom which decree, Pryor appealed to this Court.
    Street’s certificate is, that Brand paid him 661. 7s. with 161. 14s. interest thereon; and, in a short time afterwards, took in the bond.
    There is a receipt in the record from Brand to Pryor for 31. 2s. (the amount of the money reduced by the scale,)’ which Brand had paid Street on account of the bond,
    *Marshall, for the appellant.
    The decree is erroneous upon two grounds: 1st. That the Court of Chancery had no jurisdiction, there being a competent remedy at Common Daw. 2d. That the Chancellor ought to have directed a new trial upon the certificate of the Judge, that the weight of evidence was against the verdict.
    As to the first. The matter stated in the bill, was but a plain assumpsit; and, therefore, properly triable at law. Pbr, there‘is no ground for the jurisdiction of the Court of Chancery, ' unless the suggestion, ' that the plaintiff could not ascertain'the amount of the bond; gave it; ’but, this - suggestion will be no foundation- for the jurisdiction in this case, because'it appears'by-the testimony that the plaintiff could have proved it. Therefore, the suggestion ..'vras onlycolourable, and for the sake o.f translating the jurisdiction.
    Although there is no plea in form, to the jurisdiction, yet there is a demurrer, which, as to this matter, will serve as a plea.
    As to the second point. The Judge, who tried the cause, having certified r that the weight of evidence was against the verdict, it-ought to have induced the Chancellor to set aside the verdict. In England, new trials are repeated until the Judge who tries is satisfied; perhaps’ here, though, in analogy-to the proceedings at law, there should not be more than two new trials; but’, in a case circumstanced. like this, there should be at least that number.
    Duval, for the appellee.
    We could not prove the amount of the bond, except by the testimony of a witness (Street) whose deposition is-objected to by the appellant. The defence was an unrighteous one; and, therefore, a Court of Daw would not have set aside a verdict against it. Consequently, by analogy to their practice, the Court of Chancery did right in not awarding’ another trial1.
    Randolph, on the same side. The bill asks the setting up a higher security 386 for a debt, and the ^demurrer confesses -it; which gives the plaintiff a clear title to his demand.
    The jurisdiction of the Court of Chancery is threefold.
    1st. It is assistant to the Courts of Daw. 2d. It is1 concurrent with them. 3d. It is. exclusive of them. As to the first. The jurisdiction is maintainable on that ground, because the bond was1 of higher dignity than the assumpsit; and, therefore, the demand was a proper foundation for application to a Court of Equity. As to the second. Although the plaintiff might have had redress at- law, that will not prevent his application to the Court of Chancery-. There was a promise, which should be carried into execution, upon the circumstances of the case. As to the third. " The discovery could only be compelled in the Court of Chancery; for, a Court of Common Daw was incompetent thereto: and, of course, the plaintiff was entitled to come into equity for relief.
    With regard to the-Judge’s certificate. In England, the Court of Chancery repeats new trials only in two cases. 1st. When a-freehold is concerned. 2d. When the verdict is against the Chancellor’s own opinion. Neither of which is the case here. In Southall v. M’Keand, 1 Wash. 336, it was held by the Court, that the Chancellor ought to have decided upon the testimony' before him, without the intervention of the jury.
    Marshall, in reply.
    ■ • It was said, that the Court of Chancery, in this case, was assistant to the law. But how-was it assistant? Did the plaintiff ask that a higher security might be decreed him? On the contrary, he only asks that a debt, which he says is founded on a -promise, may be decreed, him. ■ But, if he had asked the bond to ha-Ve been delivered up, what use would he have made of it? He could- not have entertained a suit upon a cancelled bond; he must still have sued upon his assumpsit; and, therefore, he in fact, only asks the same redress in equity, which he might have had at law. But, then, it is said, that the Court of 387 Chancery” has *juris'dic’tion’ in all cases of fraud and deduction. Be it so; but still none appears here. It is only the common case of a breach of promise, for-which an action of assumpsit at Common Daw would have lain. But still it is urged, that a discovery was wanting. I have already answered this argument; for, it appears that' the plaintiff could have proved it; and, therefore, upon his own ground,’ it was’not necessary to resort to a Court of Equity.
    As to the other point'; Southall v. M’Keand, has no influence upon the case. Because there' it appeared,’ that the whole evidence,1 which) was befóre the jury, was before ' the 'Court' of'Chancery: ¿"circumstance, that does not' appear in this case.
    
      
      Equity Jurisdiction — Discovery. — Tne principal case is cited with approval in Chichester v. Vass, 1 Munf. 116; Mason v. Peter, 1 Munf. 445; Pollard v. Patterson, 3 Hen. & M. 79. See monographic note on “Bills of Discovery” appended to Lyons v. Miller, 6 Gratt. 427.
      Same — General Demurrer — Dismissal of Bill.— The principal casé is cited in Meade v. Grigsby, 26 Gratt. 615. for the proposition that, ordinarily, it is considered premature upon a general demurrer wholly to ■dismiss the bill,' unless the complainant’s case is from his own showing radically such, that no discovery or proof properly called for by, or founded upon the allegations in the bill, can possibly make it a proper subject of equitable jurisdiction. The principal case is further cited in this connection in Bullock v. Goodall, 3 Call 50; Lockhead v. Berkeley Springs, etc., Co., 40 W. Va. 559, 21 S. E. Rep. 1033. See Goodall v. Bullock, Wythe 328.
    
    
      
      issue Out of Chancery — When Denied — General Rules. —It seems to be well settled that in no case ought an issue to be ordered to enable a party to obtain evidence to make out his case; that, when the allegations of the bill are positively denied by the answer, and the plaintiff has failed to furnish two witnesses, or one witness and strong corroborating circumstances, in support of the bill, it is error in the chancellor to order an issue; that no issue should he ordered until the plaintiff has thrown the burden of the proof on the defendant; that,-until the onus is shifted, and the case rendered doubtful, by the conflicting evidence of the opposing parties, the defendant cannot be deprived by an order for an issue, of his right to a decision by the court on the case as made by the pleadings and proofs. Beverley v. Walden, 20 Gratt. 154, citing the principal case; Smith v. Betty, 11 Gratt. 752; Wise v. Lamb, 9 Gratt. 294; Grigsby v. Weaver, 5 Leigh 197. Theprincipal case is cited for these propositions in Smith v. Betty, 11 Gratt. 760, 761. See Vangilder v. Hoffman, 22 W. Va. 1.
      
      Same — Same—Failure of Proof. — if there be no conflict between the different portions of the evidence, no ambiguity or uncertainty in it, but a simple failure to prove material facts, it Is improper to •direct an issue. For this proposition, the principal case is cited with approval in Reed v. Cline, 9 Gratt. 137; Rohrer v. Travers, 11 W. Va. 154. See Beverly v. Rhodes, 86 Va. 419, 10 S. E. Rep. 572. See foot-note to Reed v. Cline, 9 Gratt. 136.
      But if the proofs leave the point doubtful, it Is the duty of the chancellor to direct an issue. Marshall y. Thompson, 2 Munf. 412; Bullock v. Gordon, 4 Munf. 450; Johnson v. Hendley, 5 Munf. 219; Galt v. Carter, 6 Munf. 245; Banks v. Booth. 6 Munf. 385; Knibb v. Dixon, 1 Rand. 249; Douglass v. McChesney, 3 Rand. 109; Savage v. Carroll, 1 Ball & Beatty 283.
      Same — Same—Bill Unsupported by Evidence. — The principal case is cited in Wise v. Lamb, 9 Gratt. 305, for the proposition that, where the allegations of the bill are expressly and directly denied in the .answer, and are wholly unsupported by proof, or supported by the evidence of one witness only, the •court should not direct an issue, but should dismiss the bill. See Paynes v. Coles, 1 Munf. 373, 396 ; Bullock v. Gordon, 4 Munf. 450 ; Galt v. Carter, 6 Munf. 245.
      Same — Appellate Review — Improper Direction of la-sue — Decree.—It is tbe duty of an appellate court, in reviewing a decree founded on tbe verdict of tbe jury, rendered on an issue out of chancery, to look to tbe state of tbe proof existing at the time when tbe issue was ordered ; and, if satisfied that tbe chancellor bad Improperly exércised bis discretion in directing tbe issue, to render a decree ; notwithstanding tbe verdict, according to tbe merits, as disclosed by tbe proofs, on tbe bearing when the issue was altered. In support of this proposition, tbe principal case is cited and approved in Smith v. Betty, 11 Gratt. 760; Jarrett v. Jarrett, 11 W. Va. 627; McFarland v. Douglass, 11 W. Va. 645. In Smith v. Betty, 11 Gratt. 760, tbe court said that the above rule has been followed in several cases since and in tbe recent case of Wise v. Lamb, 9 Gratt. 294, its propriety was fully recognized and vindicated in tbe opinion of tbe court delivered by Judge Lee. See tbe principal case cited in Wise v. Lamb, 9 Gratt. 310. The principal case is cited in this connection in Mahnke v. Neale, 23 W. Va. 82 ; Miller v. Wills, 95 Va. 351, 28 S. E. Rep. 337. See foot-note to Smith v. Betty, 11 Gratt. 752, and monographic note on “Issue Out of Chancery’ appended to Lavell v. Gold, 25 Gratt. 473.
      Responsive Answers — Effect. — See foot-note to Shurtz v. Johnson, 28 Gratt. 657. Tbe principal case is cited in Wise v. Lamb, 9 Gratt. 300. See Maupin v. Whiting, 1 Call 224; Bullock v. Goodall, 3. Call 49; Wilkins v. Woodfin, 5 Munf. 183.
    
   ROANE, Judge.

The bill of the appellee now before1 us, ’although it contains no specific prayer for a discovery of the bond ih quéstion; yet, upon the whole, by a liberal) construction," it may amongst other things i>’e considered, as a bill of discovery.

Admitting with the demurrer in this case, that the question concerning the depreciation is one purely of a legal nature, yet as in a trial at law, the appellee would have had occasion to produce the ' bond itself, or at least to have had evidence of its amount and date from the confession of the appellant ; and as he should not be compelled to trust to the chance of being able to establish the amount by other testimony, the present bill is on that ground clearly sustainable.

The demurrer stating, according to the form of such proceedings in other cases, “that the said bill contains no matter of equity,” is taken to refer to the bill only; and when the demurrer is over-ruled, the jurisdiction of the Court is sustained, at least until the hearing; and if at the hearing, the evidence should support those allegations in the bill which confer a jurisdiction, the Court being in possession of the cause will make an end of it; and not turn over the parties to another forum so as to produce circuit}’ and expense. But, if after the demurrer is overruled, which 388 has impliedly admitted the * truth of the allegations in the bill, the evidence of the answer and other testimony should contradict the allegations in the bill on the point conferring jurisdiction on the Court, it would then be material to enquire, whether the Court should consider their jurisdiction as sustained on that point, by the implied admission in the demurrer, in opposition to such positive testimony; and go on to conclude the cause? This is an important question; and one, respecting which I should require further time to deliberate, but that it is not necessary to be decided .in this cause; since it is in testimony, that the bond is or was in the hands of the appellant or his agent; and the appellant has given testimony respecting the amount of that bond in his answer: which the appellee had in equity a right to require.

The evidence, then, as to the point of discovery of the bond or its amount, supports the allegations of the bill instead of falsifying it; and the only remaining question is, what shall be done in a cause which as stated and proved at the trial, is deposited with a Court of Equity on one of the ordinary grounds of its jurisdiction? And this will lead us to the testimony.

The answer of the defendant Pryor, positively denies the agreement to make up the depreciation as charged in the bill, in a manner which substantially corresponds with the account given by Brand, of the acknowledgment of J. Street relative thereto. This acknowledgment, then, may be thrown out of the scale, which opposes the defendant’s answer; and then the comparison of the latter will be made with the testimony of Mr. Hopkins. His first deposition, for his second does not appear to have been relied on in the argument, if it were as clear and positive on one hand as the answer is on the other, must be repelled by the rules of Equity. But the terms of the deposition, “if depreciation should ever be demanded” (which exclude the idea of a demand by the obligee; who had before and would again demand such depre389 ciation *and, therefore, would Hot be put upon an hypothesis,) are supposed to refer to a general legislative requisition, which hath never yet taken place with respect to payments actually made in paper; and, therefore, by the best construction of this testimony, the appellant, by the terms of it, is clearly not responsible.

But, it is also in testimony, that application was not made for payment by Street and Brand; and though the particular times are not mentioned, it is supposed they were not long before the actual payment of the bond; and this tends to over-rule an idea, that there was any very great aversion in Street, to receive paper money. The same inference may be drawn from the circumstance of this money being as valuable as specie to Adams.

For these reasons I agree with the Chancellor in his first decree, that “the allegations of the bill which are denied by the answer not ’being proved by the evidence,” the bill ought to have been dismissed; and I think he ought to have adhered to that opinion, conformably to the rule of evidence established in equity. It appears to me, therefore, that the issues were improperly awarded, and that all the subsequent proceedings were consequently erroneous.

FLEMING, Judge. Two questions have been made in this cause. The first is, whether the Court of Chancery had jurisdiction of the case? and secondly, whether there was such an assumpsit proved, as should oblige the defendant to pay the money claimed by the bill?

As to the first question : This was plainly a bill of discovery; and although the plaintiff might have had redress at Common Law, if he could have clearly proved the facts, yet this might have been attended with difficulty and hazard; and ultimately perhaps, he might not have been able to have produced effectual testimony by any other mode, than a bill in Chancery in order to compel a discovery; especially as the 390 bond was out of his possession *and the transaction of pretty long standing. Therefore, upon the ground of jurisdiction I see no reason to disturb the decree.

But upon the merits, I think the weight of evidence was clearly with the ■ defendant; and that the assumpsit was not sufficiently proved to entitle the plaintiff to a decree.

The answer denies the assumpsit; and says, that the defendant told Street, that “If the depreciation was generally made up, so that he could recover it of his debtors, he would make it up:” Which was reasonable in itself, as he would then be placed on the same footing with others; and could recover the same measure from his debtors, which he was obliged to pay to his creditors.

’ This allegation of the answer, is confirmed by the testimony of Brand; who says, Street told him that the defendant had agreed to pay the depreciation if customary, (and not that he could pay it at all events, whether others did or not:) Thereby still alluding to what should be established as a common rule throughout the State.

So that here is a positive answer corroborated by the deposition of a witness; and these are opposed by the testimony of Hopkins only, whose recollection does not ap'pear to have been perfect, as there is some variation in his two depositions, which both refer to Armstead’s sale. For, in the first he says, that the defendant agreed to make good the depreciation, if any depreciation should ever be demanded. And in the second, he says, that Street called on him to take notice that Pryor agreed to pay the depreciation on a bond, the said Street had to collect for Adams and Parke, when Pryor answered, very well, and turned off. Of course, the positive answer corroborated by the deposition, must prevail; according to the known rule in Chancery proceedings, that in order to defeat an answer when responsive to the bill, it must be contradicted by two witnesses, or by one witness and strong circumstances: Of which there are none in the present case.

*The result is, that I am of opinion that the first decree of the Court of Chancery was right; and that the subse. quent issues were improperly directed, as I think there was no occasion for a jury at all. Of course, the final decree founded on the issues is erroneous; especially as the Judges who tried the cause have certified, that the verdicfiwas against the weight of evidence.

I concur in opinion, therefore, with the Judge who preceded me, that the decree appealed from should be reversed; that all the proceedings subsequent to the first decree should be set aside; and the first decree affirmed.

• CARRINGTON, Judge.

Concurred.

PENDLETON, President. On the first point as to the jurisdiction, I am well satisfied that the demurrer is to be considered as a plea to the jurisdiction; so as to take the case out of the act which precludes appellate Courts from proceeding to a reversal for want of jurisdiction, if it be not pleaded in the inferior Court: And I am also of opinion, that we.are to consider the question of jurisdiction now, as if the cause was heard upon the bill and demurrer, independent of any subsequent proceedings.

It was objected that a man may in his bill allege any fact to give jurisdiction, and bring every case into the Chancery; and it was asked, how a defendant is to avail himself of the objection to the jurisdiction, in case the fact alleged to give it be not true? The mode is obvious; he may by plea denj* the fact, and on that, ground his objection. The fact thus put in issue is to be tried: If found for the defendant, his objection operates: If found for the plaintiff, the question occurs, whether the fact alleged be a sufficient ground of equity to sustain the jurisdiction?

A demurrer admits the facts to be true; and comes to the other question at once; which we are to consider upon the suggestions of the bill.

*The plaintiff charges a promise to pay; which, if proved, would entitle him to a remedy at law. But he says, that having in consequence of the promise given up the bond, he is unable to fix the quantum of his demand, without a discovery from the defendant; which he calls upon him to make. In this view it is a bill of discovery; which is admitted to be proper in equity: And the consequence is also admitted and established; namely, that on this discovery the Court will finish the cause, and not send the parties to another Court for trial.

On the point of jurisdiction, therefore, I have no difficulty in over-ruling the demurrer, and come to the question upon the merits.

The Court approve of the principle laid down in Southall v. M’Keand, that we are to consider whether the Chancellor exercised his discretionary power properly, either in not being satisfied to decide upon the merits, without directing an issue; or in being satisfied with the verdict as certified.

We, therefore, consider the case, 1st, upon the merits. The complainant charges a positive promise to pay the depreciation, in consideration of the plaintiff’s receiving his paper. This is denied by the answer, which is contradicted but by one witness, Mr. Hopkins; and that too in a second deposition, after he had, in the first, proved a conditional promise, much of the same nature with that admitted in the answer, and spoken of by the other witnesses. Is this a circumstance to aid his testimony against the answer? It strikes me as giving additional weight to the scale of the answer, that he should vary in so material a point.

We then come to what was the real promise. The answer admits he promised to pay the depreciation, if it was generally made up, so that he could recover it of his debtors.

Brand proves the account of the promise given him by Street, was, to pay depreciation if it was customary; and Hopkins 393 in his first deposition *says, it was to pay if demanded: Which must be understood, if demanded and paid generally ; and not a demand by that particular creditor, since it could not be doubted that he would make the demand, if that alone could entitle him.

If the promise be understood literally, and to depend upon depreciation being generally or customarily paid, then there is no proof of a single instance of depreciation being made up by ' a debtor. On the contrary, we have three, where it was not made up; that is to say, one of Quarles for Pryor’s debts; and the others of Mr. Adams, (one as creditor, the other as debtor;) who would probably never have complained of it, if our act of Assembly had not been over-ruled by a law of superior authority. Upon the strict letter of the promise, therefore, it is against the plaintiff.

And what is the spirit of the promise? Nothing more than to subject this case to the ¡.general regulations which should be established, either by general consent, or by the Legislature. In this sense, Pryor swears he made it, and gives a sound reason for doing so; namely, that as a creditor, he would receive a benefit to compensate for his loss, if it may be called one, as a debtor.

And what rule is given by the act of 1781?

The appellee’s counsel say, that the scale in that act fixes the rule, either in the enacting part or in the proviso, authorising Courts to vary .the scale upon circumstances.

Both these are confined to debts and contracts commencing after the first day of January, 1777, and they do not reach the present debt created in 1774; the rule as to such debts being, that if not paid, thejr are to be recovered in specie; but, if paid before 1781, the payment is to stand as a discharge.

I am, therefore, of opinion, that the merits were clearly against the plain-394 tiff; that there was no occasion *to have directed an issue in the cause; but that the first decree of May the 17th, 1792, dismissing the bill with costs was a proper one, and ought to be affirmed; and that all the subsequent proceedings should be reversed.

Which renders it unnecessarj' to consider the questions discussed on those proceedings.

On the next day, Pendleton, President, observed, he was apprehensive that when speaking of the jurisdiction yesterday, he said, that the defendant “may by plea deny the fact; and on that ground his objection. The fact thus put in issue, is to be tried, and if found for the defendant, his objection operates; if found for the plaintiff, the question occurs whether the fact alleged, be a sufficient ground of equity;” it might be inferred that he thought it ought to be tried by a jury: But that, however, was not his meaning; for, he meant only, that it should be tried according to the usual course of Chancery causes.  