
    *Norris v. Hume.
    October, 1830.
    [21 Am. Dec. 631.]
    (Absent Brooke, P., and Coadtbr, J.)
    Chancery Jurisdiction — Relief against Judgment — De-fence Available at Lav/A- in an action of debt, defendant pleads, a special plea in bar, and the issue ioined thereon is found against him, and judgment rendered for plaintiff; then defendant exhibits bill in chancery, stating, that though he was unable to prove the matter of his plea on the trial at law. he is now able to prove it, without suggesting fraud, accident, mistake, or other circumstance which prevented him from establishing his defence at law, and praying relief against the judgment: Hum), the court of chancery has no jurisdiction to grant relief in such a case.
    The appellant, Norris, executed his bond for 112 dollars, to one Polly Threlkeld, then a feme sole; and she, while yet single (as it appeared) assigned the bond to the ap-pellee Hume, and two days after the assignment, intermarried with one Davis. Norris paid the full amount of the bond to Davis, the husband, arid took an acquittance thereof from him ; but Davis not having the bond in his possession to deliver up, Norris, by public advertisement posted in the neighbourhood, forewarned all persons fromtaking an assignment of it, stating that it had been discharged. During all the time of these transactions, all the parties, Norris, Davis and his wife, and Hume, resided in the county of Culpeper. Davis and wife afterwards removed to Kentucky; and, many years after their removal, Hume, claiming as assignee of the bond, instituted a suit upon it against Norris, in the county court of Culpeper. To this action Norris pleaded, 1. that he had paid the debt to Davis, before notice of the assignment thereof to Hume; and 2. that the assignment to Hume was in fact an assignment to him in trust for the assignor, to whose husband the debt had been fully paid. And issues bav-ing been taken on these pleas, the jury found a verdict for Hume upon both, and judgment was rendered for him accordingly.
    Hereupon, Norris exhibited his bill to the county court in chancery, against Hume and Davis and wife, praying an injunction to stay farther proceedings at law, and relief *against the judgment. But the grounds laid in the bill for relief in equity, consisted in the denial of any notice of the assignment of his bond to Hume, before the payment of the debt to Davis, and the allegation, that Norris was unable, at the trial at law, to prove his plea that the bond had been assigned to Hume in trust for the assignor; but that he had it now in his power, as he verily believed, to prove, that the assignment, if ever actually made to Hume, was made without any consideration whatever passing from him, in trust for the use of Polly Threlkeld, the assignor; and that, independently of Davis’s right, as her husband, to receive the debt, he expected to prove the wife’s assent to the payment made to Davis. But no reason was assigned in the bill, why Norris was unable to prove, the alleged trust upon which the assignment was made to Hume (of which his plea shéwed he was apprized) or any of the other facts alleged in the bill, at the trial at law; or why he could not then command that evidence of the facts, which he alleged he had in his power at the time he exhibited his bill. Neither was there any suggestion in the bill, that a discovery from Hume, or from Davis and wife, was necessary to enable him to establish those facts, or any of them.
    Hume, in his answer, admitted, that the bond had been assigned to him by Polly Threlkeld, in trust for herself, and in order to preserve the money to her separate use, after her intended marriage with Davis; but he alleged, that this assignment was made with the privity and approbation of Davis, and that Norris had early notice of the assignment, and of the motive that induced it: he also questioned the fairness, of the payments made by Norris to Davis: but he mainly insisted, that the whole controversy had been tried and determined in the action at law, where Norris had pleaded the very same matters in his defence, which he now presented for relief in equity ; and that, therefore, the case was not properly relievable in equity.
    As to Davis and wife, the bill was taken pro confesso.
    *There were several depositions taken and filed on both sides; but the cause turned, eventually, on the question of jurisdiction alone.
    The county court perpetuated the injunction. Hume appealed to the superiour court of chancery of Fredericksburg, which reversed the decree, dissolved the injunction, and dismissed the bill with costs. And then Norris appealed to this court.
    The cause was argued here by Stanard for the appellant, and by the Attorney General for the appellee,
    upon the merits, as well as on the question of jurisdiction, Whether this was a case properly relievable in equity?
    
      
      See monographic note on ''Judgments” appended to Smith v. Charlton. 7 Gratt. 425; monographic note on "Jurisdiction” appended to Phippen v. Durham. 8 Gratt. 457.
      Bill of Discovery — Time of Filing. — In Faulkner v. Harwood, 6 Rand. 125, it was decided that a bill of discovery to obtain evidence which might have been useful in a trial at law, must be filed pending the suit at law, unless some sufficient excuse is shown why it was notiiled at that time. Judge Carr said that the bill mus i be filed as soon as the party discovers the necessity of appealing to the conscience of his adversary. In Green v. Massie, 21 Gratt. 360. it is said that Judge Grujen, in the principal case, expressed his entire concurrence with the views of Judge Carr.
      See further, monographic note on “Bills of Discovery” appended to Lyons v. Miller, 6 Gratt. 427.
    
   GRE)E)N, J.

As the bill does not state. that a discovery from Hume or from Davis and wife, was necessary to enable Norris to establish the facts relied on in his bill, as the ground of relief, the question does not arise, Whether such a suggestion, well founded, would give jurisdiction to a court of equity, after a trial at law upon issues involving those very facts? That is a question, therefore, which it is not neces.-sary now to discuss: if it were, I should strongly incline to concur in the views taken of it by my brother Carr, in Faulkner’s adm’rx v. Harwood, 6 Rand. 125. The present case is nothing more or less than an appeal from the judgment of a court of law, to a court of chancery for a new trial there of the same issues that had been tried at law, without any suggestion of fraud, accident, mistake, or any other circumstance, which prevented the party from making his defence at law, upon exactly the'same proofs which he now exhibits in chancery. Upon this ground, I am of opinion, that the chancellor’s decree ought to be affirmed.

The other judges concurred.

Decree affirmed.  