
    
      Coleman’s Adm’x v. Anderson.
    November Term, 1877,
    Richmond.
    Absent, Mon curé, P.
    Eqiiiiable Relief.* — Quaere: If a party against whom a judgment has been rendered in a court of law, may come into equity to set up payments he has made to the attorney of the plaintiff in the action at law, where it is insisted by the plaintiff at law that the debtor was forbid to pay to the attorney, and the attorney was so informed by the plaintiff.
    This was an appeal from the decree of the circuit court of Caroline county affirming a decree of the county court. It was a bill by Benjamin Anderson to enjoin a judgment for $300 with interest from the 6th of March, 1860, and costs, which Coleman’s administratrix recovered in the circuit court of Caroline county in May, 1866, against said Anderson and Henry McCalley. The grounds on which the plaintiff sought to enjoin the judgment, was, that John J. Chew was the counsel for the plaintiff in the action in which the judgment was recovered, and that he had paid to Chew in September, 1867, one year’s interest on the judgment; that he paid to Chew in April, 1868, $100, and in November, 1868, $100, and in January, 1870, $75; that in May, 1870, he made an agreement with Solon T. Coleman, who he believed to be the agent of Coleman’s administratrix, by which said Coleman agreed to take in full of said judgment $110, and that he sent to Coleman a check for the money, which he kept until the 10th of April, 1871, "and then sent it back to the plaintiff; and plaintiff enclosed it in an envelope directed to Coleman directed to his postoffice; and that the money was still in bank, as he believes; that not* withstanding all this, Coleman’s adminis-tratrix had sued out an execution upon the judgment without any endorsement of credits upon it, which was then in the hands of the sheriff. The injunction was granted.
    Coleman’s administratrix answered the bill. She denied that Chew was authorized to collect any money on the judgment except the $18. That in March, 1868, Anderson had come to see her and told her that Chew proposed to compromise and settle the debt by the payment of $100 a year, provided respondent would agree to it, and that she did then and there, in the presence of several persons, distinctly inform said Anderson that she would not assent to it; and moreover stated to Anderson that he was not to pay to the said J. J. Chew any money on the said judgment, but that he was to settle with her; that she afterwards informed Chew what she had said to complainant, and told him to collect no money from him. She avers she has never received one cent from said Chew on account of this debt of Anderson, nor did he ever inform her that he received any part of it.
    As to what is said in the bill in respect to Solon T. Coleman, she only; knows that some time in 1870 he told respondent that he had a conversation with Anderson or his attorney, and he had sent him a check or draft in full of the said debt; that he had taken it with the understanding that if it was all right and approved by this respondent, then it would be a bargain. She at once refused and rejected it; and she understands and believes the draft was in a short time returned, or tendered by said Solon T. Coleman to the complainant or his friend *or attorney; that Solon T. Coleman or no one else is or was her attorney or agent to compromise the debts due the estate of the testator; that Solon T. Coleman was not informed at the time he brought her the draft as to the true condition of the judgment and amount due. and had he been her agent and entered into such a contract as it is alleged he did, it ■would not have been binding upon him or her, because it was through mistake on his part.
    A number of witnesses were examined in the case, and the cause coming on to be heard on the 19th of September, 1871, the court perpetuated the injunction with costs; and on appeal to the circuit court, that court' affirmed the decree. Coleman’s ad-ministratrix thereupon applied to this court for an appeal; which was allowed.
    Welch, for the appellant.
    John Meredith, for the appellees.
    
      
      Equfta'ble Relief. — The principal case is cited in Va. ining Co. v. Wilkinson, 92 Va. 100, for the maxim that equity will not grant relief where there is a plain and adequate remedy at law. See also, Miller v. Miller, 25 W. Va. 503.
    
   Anderson, J.

The court is of opinion that the plaintiff, below had, and still has, upon the case made by his bill, a plain and adequate remedy at law, by motion, on reasonable notice, to quash the execution in the circuit court which rendered the judgment, or before the judge thereof in vacation. (Code of 1873, p. 1178, § 40.) And nothing appearing on the face of his bill, or in the pleadings or evidence, from which it could be inferred that his remedy at law would be unavailing or inadequate, and that there was a necessity for invoking th,e aid of a court of equity, upon the authority of Morrison v. Speer, 10 Gratt. 338, and Beckley v. Palmer, n Gratt. 635, the court of chancery had no jurisdiction to hear and determine his case. In the former case Judge Daniel, who delivered the opinion concurred in by the other judges, *says: “I can see nothing in this case on which to ground the jurisdiction of a court of chancery. The original bill sets out a single execution, and payments made to the sheriff in satisfaction of it, which had not been fully credited. No reason is alleged why the appellee had not applied, or might not still apply to a court of law from which the execution issued to remedy the injustice of which he complained; and there is an entire absence from the case of those peculiar features which induced this court, in the case of Crawford v. Thurmond, 3 Leigh 85, to sanction the interference of the chancellor.” Every word of the foregoing remarks might be spoken with equal appropriateness to this case as to that, except that the payments are alleged in this case to have been made to the judgment plaintiff’s attorney instead of to the sheriff, as in that — an immaterial difference.

In the other case the opinion was delivered by Judge Lee, in which Moncure and Sam-uels J’s, concurred — a majority of the whole court. Neither of the other judges dissented. Allen, J., concurred in affirming the decree, upon another ground stated in the opinion, but expressed no dissent to the opinion on this ground. Daniel concurred in affirming, but does not say on what grounds. In the opinion, Judge Lee says: “I apprehend a party to be entertained in a court of equity upon a case of this character ought to allege some reason why its aid is invoked, instead of seeking his remedy in the court of law. It should appear that the latter could afford him no remedy, or an inadequate one, or that he had been deprived of the opportunity of seeking it without any default on his part, or some circumstance should be shown, furnishing a reason for withdrawing the matter from the cognizance of the appropriate tribunal, and carrying it into the court of chancery.” And as the judge said in that case, it may be said in this: “nothing *of the kind is shown here; but for aught that appears, the matter might have-been as well tried (in this case, we think, better tried), and as full redress afforded in the court of law as in the court of chancery.”

Judge Lee then says the case of Crawford v. Thurmond, supra, is not in conflict with the foregoing views. “That case,” he says, “involved several complicated questions of law and fact stated in the opinion of Judge Carr, and which he thought could be better tried in the court of chancery than the law court, and there was an equitable right involved more appropriate for the jurisdiction of the former tribunal than the, latter.” This is an authoritative judicial interpretation of that case. There are no such reasons for entertaining chancery jurisdiction in this. There is no equitable right involved here more appropriate for the jurisdiction of a court of chancery than a court of law, and there are no complicated questions of law and fact which could better tried in the former court than in the latter. On the contrary, the questions of fact are not complicated, but their solution depends on testimony which is very conflicting, and the court of law may better evolve the truth by having the witnesses before it, observing their manner o.f giving their testimony, their intelligence, their bearing and moral tone, the agreement of the testimony with the probabilities of the case, and from these circumstances, and their general standing in the community, may be better qualified to decide what weight should be given to their testimony respectively.

In this there was no demurrer to the bill for want of jurisdiction or plea to the jurisdiction. But the bill does not show on its face proper matter for the jurisdiction of a court of chancery. Section 20 of chap. 167, p. 1092, Code of 1873, which allows no exception for want of jurisdiction, unless it be taken by plea in abatement, is applicable only when the bill shows on its face proper *matter for the jurisdiction of the court. When the bill or the whole record does not make a case which gives the court jurisdiction, it is bound to notice it, whether it be the court of trial or the appellate court, although no exception has been taken to its jurisdiction. No court can hear and determine a cause of which it has no jurisdiction. Hence objection may be made for the first time to the jurisdiction in the appellate court where the want of jurisdiction appears on the face of the bill and proceedings. It is the policy of our-law that the 'two jurisdictions should be kept separate, and it is important that the decisions drawing the line of separation between them should be uniform and stable. If it be understood that in such cases the party aggrieved will be confined to his remedy by motion to quash in the court of law, unless by the averments of his bill it appears that it would afford him inadequate relief, or for other reasons was not his appropriate remedy, it would be a saving of great expense to the litigants, and could work no injustice. The court is of opinion, therefore, to reverse the decree of the circuit court, to dissolve the injunction, and to dismiss the plaintiff’s bilí with costs, without prejudice, however to the right of the plaintiff to prosecute his remedy at law.

Burks, J.,

concurred in the opinion of Anderson, J.

Staples, J.,

did not concur in the opinion of Anderson, J.; but as, if he dissented, the decree of the court below would be affirmed, by reason of the court being equally divided, which result he thought would be worse than that which would follow from the effect of Judge Anderson’s opinion, he therefore concurred in the results of that opinion.

Christian, J.,

dissented. He thought the decree below should be affirmed.

Decree reversed.  