
    CUNNINGHAM vs. CALDWELL.
    
    
      June 4th.
    where there a defence « iñacaféwhich ¡>y Iules of have been6 made, the de-¡ng to partió», >r ciieumftan. arifins or bat-tendon) he has been deprived oithe benefit of his defence, or he cannot be relieved in equity.
    
      Adam Caldwell exhibited his bill in the late Franklin district court against John Cunningham,and Stephen G> Letcher, stating that in the year. If 99, the defendants commenced dealing in thq complainant’s store ; thgt shortly after, the complainant had scruples about the solvency of Cunningham ; that upon application to Let-cher on the subject, he informed, the complainant that Cunningham and Letcher were partners in erecting the brick work of the penitentiary, or some part thereof, and that he, Letcher, would see the complainant paid for all said Cunningham might take up : after that, the complainant furnished goods to both, or either, or to their orders, and charged them as partners, until their account amounted to —■-; that On the 7th of September 1799, he applied to Letcher for a warrant on the treasury for 60/. which said Letcher promised to procure from said Cunningham ; and shortly thereafter, said Cunningham, delivered the warrant for 60/. to the complainant, without any application other than as before stated ; that as the defendants, as partners, were indebted in a much larger sum, he credited their account, as partners, by the said warrant; that about the 7th of January 1800, Cunningham paid 20/. cash, in part of his individual account with the complainant, not claiming any credit for the warrant; that subsequent to this, the defendant, Cunningham, complained that Let-cher had not settled the amount of the warrant aforesaid, and claimed it of the complainant, which he refused to pay ; that a suit against the complainant was proposed by him, as an expedient to adjust the dispute between the said Cunningham and Letcher; that suit was brought accordingly by said Cunningham,and a judgment fraudulently obtained by surprize, in the absence of said Complainant to the eastward after goods, and without any attempt to settle with said Letcher; that the account against the defendants, as partners, in which the said 60/. was credited, had been actually inspected by the said Cunningham, and suit had been brought against the said co-defendants for the balance due thereon. The bill, after praying an answer, generally, states special interrogatories to both defendants as to the partnership ; a special interrogatory to Letcher, as to his procurement of the warrant, and the delivery thereof, for him, by Cunningham, to the complainant; and a special interrogatory to Cunningham, whether he did not deliver the f aid warrant, without any previous application from the complainant; and prays for an injunction, and for general relief,
    The separate answer of the defendant, Cunningham, was filed first; and denies any other partnership to have existed between the co-defendants, except as joint undertakers of part of the brick work of the penitentiary--each party, at his own costs, and upon his own individual credit, furnishing hands and materials. The respondent states that the said auditor's warrant for 60/. was, at the request of the complainant, delivered by the said respondent to the complainant himself, and upon an expiress and previous promise to return the amount in a short time, and in such portions as to enable the said Cunningham to pay his hirelings. He states the 20/. in the bill mentioned, to have been furnished on account, and as an additional favor, at the request of the complainant as such, and not as a debt due. He believes that the complainant did not consider the said respondent responsible for the goods purchased by Letcher ; he admits that the suit at law was brought for the amount of the warrant, as aforesaid lent; but states that the complainant employed counsel to defend the suit ; that witnesses were summoned, and did attend for the complainant ; that an issue was joined, and a defence made upon the circumstances stated in the bill, and a fair trial before a gqod jury was had without any surprize on the complainant, and without fraud, &c. &c.
    Upon motion, the injunction was dissolved. Subsequent to this, Letcher answered ; and thereby admits, in detail, the statements of the bill; alleges that he has settled with Cunningham the amouut of said warrant, which was furnished to said complainant at the request of the said respondent, Letcher, and on his account; and admits it to be iniquitous in his co-defendant to attempt to collect the money of the complainant, as he had paid Cunningham for the said 60/. and directed the complainant to credit the account therewith ; he denies all fraud, &c. &c.
    The exhibits and depositions are, in substance, as follows :
    A bond given by said Letcher and Cunningham to the directors of the penitentiary, with security, for the building of a part of the brick work.
    A receipt from Cunningham to Letcher in full of partnership account they had with O. Beatty.
    An order drawn on the complainant, signed Stephen G. Letcher, & Co. dated 15th August 1799, in favor of Brown, for five dollars ; another order, dated November 13th 1799, directed to the complainant in these words, “ Sir, you will let the bearer have what merchandize he wants — (signed) Stephen G. Letcher, &Co.w
    
      Otho Beatty,
    deposeth, that a company account was opened in his store jn the name of Letcher and Cunningham, at the solicitation of both ; that he sued them, obtained judgment, and Cunningham paid or secured his proportion of the account ; that he conceived them partners when that account was opened, in 1800.
    
      Edm. Bacon,
    deposeth, that the complainant delivered a number of loads of wood, at the brick-yard of Letch - er and Cunningham, whilst they were making brick for the penitentiary, and that they were then in partnership.
    
      James G. Murray,
    
    deposeth, that on the 7th January 1800, the complainant and Cunningham, the defendant, had a settlement ; the latter paid 20/. said he had no more, but acknowledged he owed Caldwell seven pounds more, or thereabouts ; that the warrant for 60/. had been credited to the account of Letcher and Cunningham, to which Cunningham made lio objection ; that the wood hauled by Caldwell to the brick-kiln, was charged to account of Letcher and Cunningham, and not to the private account of Cunningham ; that he heard Cunningham ask Caldwell for wood, but does not know whether it was for the company or not. Cross examined — he said orders were sent to the store, signed Letcher and Cunningham, but does not know which of the two sent them ; that he does not know that Cunningham ever made any application for goods, except on his own private account; that he knows not by whose direction the company account was opened.
    
      John D. Richardson,
    deposeth, (upon interrogatories put by complainant) that he had accounts with Letcher and Cunningham, separately, not as a company ; that in the year 1799, they settled the accounts as,a company ; that in the year 1798, whilst they were engaged in making bricks for the penitentiary, he received orders signed “ Letcher and Cunningham ;” that Cunningham did not appear to have any objection to settling the accounts. Cross examined — he stated the said Cunningham had never taken up any wares, except what was charged to his private account ; that he is not certain, but thinks both Letcher and Cunningham were present when he made the contract for, the bricks that were settled in the company accounts,
    
      Daniel Weisiger,
    
    answering to interrogatories, de-poseth, that Letcher and Cunningham executed a bond jointly, for the performance of a part of the brick work. ©n the penitentiary ; that he was one of the commissioners, and considered them, the said Letcher and Cunningham, as partners in the brick work ; that he knows of a bond given by said Letcher and Cunningham to Thomas Bell, as administrator or executor of Thompson’s estate, for twenty odd pounds, but does not know what it was for ; that said Cunningham applied to him (the deponent) to be his security for the hire of negroes ; that the defendant, Cunningham, had hands, and supposes he boarded them himself ; does not know1 whether Letcher and Cunningham were partners in any thing, 'other than the brick work before mentioned.
    
      Francis Ratliff-
    
    — That himself and George Rowland were employed in building the jail and penitentiary ; that they signed bonds on the same day that Letcher and Cunningham did ; that they, the said Ratliff and Rowland, had an account with the complainant, which was kept separate in the store, except the wood account, which was charged half to each, as partners in building the brick work they engaged to do.
    Cunningham’s witnesses deposed as follows :
    
      John Baker
    
    — That in the spring 1801, in A. Caldwell’s store, James G. Murray, the store-keeper, asked the defendant, Cunningham, if he had sued Caldwell ; Cunningham said he had not, but intended it ; Murray said ifhe did, Caldwell would cast him ; Murray farther said, in the same conversation, that he knew the money was not Letcher’s, but Cunningham’s: the deponent heard nothing about Cunningham being indebted to the complainant.
    
      John Crutchfield
    
    — That in the spring 1801, he heard a conversation between the complainant and defendant, Cunningham, respecting 8 200 in treásury warrants, that Caldwell acknowledged he received from Cunningham, and had placed to the credit of Letcher’s account ; Cunningham asked him what he did that for ; Caldwell replied, they were in partnership, and that Letcher was d-d bad pay, and they could scuffle it out. Cross examined by complainant — he said he had heard Cunningham acknowledge he was in partnership with Letch-er in the whole or a part of the brick work of the penitentiary ; that he understood from Cunningham, the warrant was lent about the time of the partnership, and working on the penitentiary ; that he heard said Cun-ninghatn say. that he was indebted to the complainant a. bout 6 or 71. which he is forcibly induced to believe was before the warrant was lent, because he heard said Cunningham sáy, he “ hated to lend it, but that he owed Caldwell about 6 or 7l. ; that said Cunningham informed the deponent, that the complainant had applied to Letcher for money; that Letcher had a particular use for what he had, but told Caldwell he thought he might get “ a part or the whole” from Cunning-harm In answer to interrogatory by defendant, he said that the defendant, Cunningham, furnished hands and materials wherever he undertook a job of work, except the work on the jail and penitentiary.
    
      Thomas Long,
    
    deposed, that in the spring 1801, in á conversation between the complainant and defendant, Cunningham, the former acknowledged to have borrowed of the latter, g 200, in a warrant or warrants ; but refused to pay Cunningham, alleging he had given Letcher’s account credit for it; and that Letcher and Cunningham were in partnership. Cross examined by the complainant — he again says, it was not the account of Cunningham, but of Letcher, that complainant said he had credited.
    
      P. Hackman,
    thinks shop-keepers and others, considered Cunningham and Letcher as partners, no farther than in the expence of building the jail and penitentiary, or a part thereof; and being examined by complainant, answered his interrogatories, that he thinks it was before the warrant was lent, that defendant, Cunningham, was in complainant’s debt ; he does not know whether the defendant was applied to by Letcher to lend the S 200 or not ; knows Cunningham and Letcher were in partnership in part of the brick work on jail and penitentiary.
    This suit having been transfered to the general court by the law abolishing the district courts, was heard, and decree enrolled in favor of the complainant, for principal, interest, cost and damages, which had been received by Cunningham after the dissolution of the injunction. From this decree Cunningham appealed. Upon the hearing, this court, at their spring term 1805, affirmed the decree. A re-hearing was moved for and granted. At this term, it was again argued.
    Talbot, for appellant.
    — Upon principle and upon precedent, I contend that the court of chancery ought not fé have Interfered with the judgment at law. After a defence there ; after a trial before a jury, that sacred constitutional privilege ought not to be interfered with. Juries may mistake, be tampered with, or give a verdict contrary to evidence ; but the mode of trial finds the correfctive, by motion to the same court for a new trial. Shall the party, after a trial at law, appeal to a court of chancery,' barely for the purpose of re-trying the question, which has been decided by á jury ? Good policy and justice require that where a party neglects to make his defence at law ; or if made, and the jury should mistake the case, and the party neglects to move for á new trial, that in either case, he should be bound by his neglect.
    Upon principles settled by the repeated decisions of this court, the statements made by the complainant cannot afford him the interposition of a, court of chancery. These principles are, that a court of chancery will not set aside a judgment at law, unless obtained by fraud, trick, or device of the adversary ; or where the party was prevented from making a defence by an accident qr surprize, not within his power to controül. Cited Duncan vs. Snell, pr. dec. of the court, p. 575 — Smith arid Durrett^ ibid 278 — Morgan and Dickerson, ibid 366 — -Davis vs. Ridgely and Watkins, ibid 209 — -Harrison and Jackson, ibid p. 142 ; also, 2 eq. ca. ab„' 524, case 6th.'
    
      Bledsoe, on the same side.
    — -I beg leave to refer the court to Kairi’s principles of equity, for this doctrine:, that in cases proper for law, a man must defend himself by legal pleadings ; if he does not, equity will not extend relief. I will also refer to 2 Vefnoii, p. —- for this case. Executor has assets only to the amount of lOO/. ; he is sued in three several writs of 100/. each, and suffered three several judgments by default, whereby he was liable to three times as much as he had assets to satisfy ; equity refused relief, because the defence was proper for law.
    
    
      Clay, for the appellee.-
    — I shall contend for two principles — -1st, Gentlemen have mistaken the grounds upon which courts of chancery interfere. The true ground is this : where the chancellor is satisfied a judgment has been rendered at law, for more than in conscience is due, he will extend his relief. 2dly, If the general doctrine contended for by the appellant, is correct, yet this is a case ProPer for relief.
    1st. They contend that w here the party applying has been :n default, chancery will not grant relief. But how many cases are there at law, where the party was in fault, and yet the chancellor grants relief. All penalties and forfeitures are incurred by negligence ; but chancery inquires what ex equo et bono, “ ought the party to receive,” and applies itself to the conscience. If the party is placed in as good a situation as if defence had been made at law, it is all he ought to ask. This is done by making the party applying for relief, pay all ex-pences at law, or suefy as are incidental to his neglect to make defence. And to this doctrine, the case decided m this court of Morgan and Dickerson 
      , is in part applicable.
    A contrary doctrine is monstrous. Suppose a suit brought for 10,000/. and a judgment rendered by default to that amount, without a shadow of claim, shall I pay a -penalty of 10,000/. for neglect? Costs at law and chancery, and costs extraordinary, or out of pocket, are all that the party should receive in such a case. Even in criminal cases, the equitable principle is contended for by Beccaria, in his celebrated work on crimes and punishments, that the punishment should be proportioned to the crime. Shall then, in civil cases, all proportion between fault and penalty, be annihilated ? The true principle, I again repeat, is, that where the chancellor is satisfied the judgment at law, is for more than is is conscience due, “ he will consider the conscience of the party recovering as affected,” and restrain him from recovering the excess.
    2d point. — -That this isa case proper for relief, I shall now proceed to shew. The real intention of the suit at law, was to ascertain the true statement of accounts, between Letcher, Caldwell and Cunningham. The latter ought to have laid these accounts before the jury ; and if he did not, it was a fraud and breach of agreement. How does this controversy appear ever to have been tried at law? Caldwell’s account never has passed in review before the eyes of a jury, or a court of common law. So that if the gentlemen maintain their several propositions, they must maintain this further proposition, that where a party has his election to try at law or in chancery, and has elected, as here, first to apply to chancery, that he ought to be precluded.
    [Judge Trimble. — .Can a partnership demand be set-off against an individual debt ?]
    
      Clay.
    
    — At law, I admit, it cannot ; but in equity it can. Each partner is bound in equity for the whole. Before the statutes respecting set-offs, they could not be had at law, but were allowed- in chancery ; and those statutes only embraced the equitable relief afforded by the chancellor, without sending the cause to chancery for trial.
    A principle laid down by the court, in Barrett vs. Floyd, 3 Call, p. 531, may perhaps be found serviceable upon the subject of jurisdiction — See also the case of Stokely vs. Craig 
      
      , in this court; and the whole tenor of decisions on the jurisdiction oí a court of chancery, as reported in Washington and Call, shews, that the courts have uniformly given relief, where they have been satisfied the party has recovered more at law than is in conscience due.
    
      Rowan, on the same side.
    — The boundary between the jurisdiction of courts of law and chancery, is involved in greater uncertainty than any other legal subject. In the twilight between the two jurisdictions, decisions have oscillated very much. However, chancery seems to have considered herself, in matters of account-and-contract, as the inspectress and directress too, of the courts of law ; considering law as her hand-maid, bound to proceed upon moral principle ; and where an imperious case for relief has been made out, the relief has never been denied. So in a case reported, the chancellor swore on the bench, by the body of his God, if law did not interfere, he would, as chancellor. The confusion has arisen, where a doubtful case has been presented for relief; but in no case where a dereliction of moral duty, ;of sufficient magnitude to strike the attention of the court, has been exhibited for relief, has that relief-been denied.
    In Billon vs. Hyde, 1 Vesey, sen. p. 331-, the chan-, cellor says it was matter of contract, and therefore proper for chancery. Consider this case in reference to the case of Moses and Mocfarlane, 2 Burrow 1005, and see how open the action of indebitatus assumpsit is to equitable defence at law — Vide 2 Pr. Wms. 72,219, 424— j Atk. 127-8 — Bumb. 178 — Cases in chan. 312 — rf Wm. Black. Rep. 197 — 1 Brows Rep. 125 — 1 Ver sey,jun. 424: the judge says, the action of assumpsit is in nature of a bill in equity, and plaintiff could not recover in that action, unless he could in equity ; which proves the jurisdiction of a court of equity. The gentlemen tell us we ought to have applied to a court of law for a new trial; that is as exclusively the prerogative: of a court of law as the present subject. Why should the chancellor interfere by granting a new trial, any more than by granting the relief sought for in the present case ? The rules contended for by the gentlemen in the opposition, would apply as forcibly against new trials ; and yet courts of chancery uniformly direct new trials at law, wherever a cause for new trial is made out. Justice is the polar star in proceedings at law and in equity; all fictions of law, and all their workings, are designed for the furtherance of justice ; and where law has been made the pimp or hand-maid to injustice, there is no potency in any rule of law, which would forbid; relief: otherwise, the child would be made a parricide. I have seen, I confess, no didactic work upon the doctrines I have advanced; but think they are fairly to be collected, from a xuhole view of the cases cited.
    As to the arguments drawn from the constitution— that says “trials by jury7 shall be as heretofore how they were, it does not say. I contend they are to be as in England, from whence we have derived our system of jurisprudence, juries are not competent to matters of; account; unless you can bring them to a point, to something like a noun substantive, that they7 can feel, they are wandering in the dark. The particular circumstances of this case were not gone into by the counsel for the. appellant; but the court will, I trust, find no difficulty7,, upon reading the biilj answers and exhibits, in saying, the relief extended by the inferior court was proper. The only question seems to be upon the point of jurisdiction.
    The defendant has not pleaded to the jurisdiction, but has answered ; is it now too late to object to the jurisdiction, after the complainant has been gulled by the answer, which puts the merits of the account (which is a subject matter of which the court has cognizance) in issue, and is entirely silent as to jurisdiction ? The Siasirri that “ qtásqms remntiari potest,” &c. ws& applies, to this case.
    
      Tedboty in reply.
    — The remarks of the gentil enríe» i& the opposition, are so evanescent, in the general, as not to deserve an answer; but where they have assumed a definite shape, I will answer them.; and trust I shall bet able to shew there is no pretence for filing this bill. Caff any man who reads this bill, say, the idea of injustice and surprize at law, is not one of the grossest gulls, that ever was thrown out to gull a court. How could a suit between Caldwell and Cunningham, settle the differences between Letcher and Cunningham ? Could the verdrec be binding on, Letcher? Can the court believe such, was understood to be the motive — the object of the suit?. The cobweb pretext is too flimsy, absurd and preposterous tó be believed. Does he state that it was agreed between himself, and Cunningham, that suit should be brought for the purpose of settling accounts between. Gunningam and Letcher ? Does the bill contain any’ allegation that the suit was undefended at law ? The complainant dared not to make such a statement: and' the chasm left by the bill on this subject, is well filled upt by the answer; which not being contradicted by any witness, and in this particular being to a point which; ought necessarily to have been stated in the bill^ to give jurisdiction, ought to have weight.
    But he was absent at Philadelphia. If he chose to. abandon his cause for more important pursuits, orto leave his defence to friends and eminent counsel,- ought this to be a ground of relief ? If the court embrace-th® doctrine contended for, that wherever in foroeonsci'eniioe the party is not entitled to the amount recovered at law, the chancellor will relieve ; the trial at law-will be amere passage to a suits in, chancery. The policy wliich forbids multiplicity of law suits, will be evaded,, whenever the complainant, can state a general cause of surprise, or, ⅛ vague supposition of his adversary’s intention iff bringing suit, so general,as that no issue can be taken, and subjecting the complainantto.no danger of conviction for perjury. '
    Can there be a doubt, but that the question, suggested here, that the warrant was lent by Letcher, and placed to.his credit, was.a question properly triable at: law? The cases of relief by the chancellor against penalties at common law, are cases in which no relief could have been had on the trial at law. This proves the principle I contend for. The chancellor interposed because the party applying to him could not have gained any relief at law ; but does this shew that where he has neglected to plead and defend at law, that he shall be relieved? We do not contend that wherever the party is in fault, chancery cannot give relief; but only where he might have defended at law, and has neglected to do it. The case from Vesey 331, so strongly relied upon, does not apply to the present case : there payments were made after secret acts of bankruptcy, which by the inflexible rigid rule of relation, were void ; and therefore could not be given in evidence : this rigid technical rule of law, about relation, was relieved against in favor of honest bona fide payments ; not because the applicant had neglected, but because he never could have made defence at law. But the chancellor says, there must be equitable circumstances : these he uses in contradistinction to-legal considerations; thereby meaning such equitable circumstances as are the peculiar and appropriate subjects of the jurisdiction of a court of chancery.
    In cases of payments, reasons are assigned for not pleading them at law, in the general, such as a confi dence reposed in the party who received, that he would give credit for the amount; and indeed it might be considered as a fraud in the receiver, not to do it; but in this case, the real contest was the warrant of 60/.
    No account stating goods, wares and merchandize, sold to Cunningham and Letcher, as partners, is filed, although one is referred to. The bill, answers, and depositions, all prove the real question in dispute, was, whether the defendant at law, had a right to place the warrant to the credit of Letcher. And if this court think proper to overrule tire question as to jurisdiction, and go into the merits of the case, they will find them, clearly in favor of Cunningham.
    This bill could not have been brought with an expectation of getting relief against the judgment at law ; the proof against the complainant, of his own acknowledgments, is too strong, clear and conclusive* But this suit has been depending long enough to shew you the happy effects of injunctions in behalf of fraudulent debtors against honest creditors.
    
      If the doctrines contended for to-day by the counsel for the appellee, are countenanced, our courts of justice will be deluged with injunctions ; no man will defend himself at law ; he will lie back to disclose a secret intention locked in his breast; some secret advice as to the bearing of the suit, barely to overhaul the matter decided by a jury — the best mode which human ingenuity has yet devised, for the trial of matters of fact.
    The complainant, in a court of equity, praying for relief against a verdict at law, ought to state and make out by proof, some good reason why he did riot defend himself at law. He ought to produce a receipt, or otherwise make out a clear and decisive equity. The former decisions of this court have been uniform upon this subject, and have had a salutary effect in cutting off injunctions in the inferior courts by dozens, and in preventing others. And this court will reflect seriously upon the inconvenience and delays which must result from a contrary decision.
    But it is said the answer is silent as to jurisdiction* Where want of jurisdiction appears on the face of the bill, the court are bound to take notice of it. Want of jurisdiction may be taken advantage of, by plea, answer, or demurrer. Where the facts appear, want of legal deduction, cannot prevent the court from drawing the legal conclusions from the facts. The answer, in this case, gives sufficient notice of the want of jurisdiction j it states the facts. The suggestion of want of jurisdiction, is a mere formal technical part, the omission of which, ought not to preclude the question.
    
      
       The reporter is indebted to the friend Ihip and pnlitenefs of judge Bibb for the report of this cafe, and that of Grant <vj, Grojbon., and Taulvs, Maote^ ante*
      
    
    
      
       Pr. dec. S®6-
    
    
      
      
         May 1803»
    
   Grundy, Ch. J.

now delivered the following opinion of the court : — This cause stapds upon a re-hearing from a decree formerly pronounced in this court, in favor of Caldwell, by which the decree of the general court was affirmed.

Two points have been made and relied On by the counsel for the plaintiff. First, that a court of equity, in a case like the present, after a trial at law, ought not to interpose. Second, that injustice had not been done in the common law trial.

Upon the first point, the court have carefully examined all die authorities within the power of the court, and have not been able to find any case circumstanced like ⅛⅜'present, in which a court of chancery have enter-taínéd jurisdiction.

3 ⅜ca-ab-531! ^ 65

' The general rule is, that where there is a éefertcé <ñ Ixnv, equity will not grant relief. If then, an applicant a «hurt of chancery, presents to the court a case in which, by :tbe rules of law, a full legal defence might have been made, it is incumbent on him to shew, that owing to particular circumstances, (not arising from his own neglect or inattention,) he has been deprived of the benefit of hiS defence at law. In this ease, no fraud in the management of the suit at law, is charged or proved, and the court are bound to presume there was a full and fair;trial at law, the contrary not being shewn. Thd surprize complained of cannot be regarded; it did hot arise from any deceptions conduct of Cunningham, but Was occasioned (if it existed) by the negligence of Caldwell himself.

The facts submitted by the case to the consideration of the court of chancery, were properly triable by the jury who were empattuelled in the common law suit 5 and it is not shewn that those facts were not there fairly and fully tried ; and even had this been shewn, the' complainant was bound to have had them there tried, unless a sufficient cause w as shewn for its not having been done.

Were this a case in which a court of chancery might properly entertain jurisdiction, this court cannot perceive that injustice has been done to the complainant; although the testimony is in some degree contradictory as to the loan of the civil list warrant, which was the subject of dispute ; yet the testimony proving that Cunningham, and not Letcher, lent the warrant to Caldwell, strongly preponderates ; as does also the testimony proving that Caldwell had credited it to the separate account of Letcher. And it may also be remarked, that there is no proof of the amount or justness of the claim of Caldwell against Cunningharn or against Cunningham and Letcher ; nor is there any such account filed.

Decree of inferior court, and former decree of this court, reversed. 
      
       The fame-point was'decided in the cafe of Rice vs, the juftkes of JeJfa* tnitef and in Winn vs. Guthrie, Spring term 1808 — See alfo, Cowan vs. Price fall term 1808.
     