
    *Thornton Executor of Thompson and Gray and Wife v. Spotswood.
    October Term, 1792.
    Wills — Equity Practice — Case at Bar. — A, upon his marriage, settled an annuity of 5001. on his wife, charged on a certain tract of land, wil h power of distress, and nomine pcena?,. By his will he devised all his estate to his son B, in tail, who, after his fathers death, entered. B gave to his mother, the annuitant, his bond and two bills of exchange for the amount of her annuity then due, and died indebted to his mother for a part of her annuity afterwards accrued, having, by his will, devised all his estate, not intailed, to his second son. The bills were negotiated by T, who intermarried with the annuitant, upon which an action was brought and judgment obtained against the executors of B, upon which an execution was issued, and returned nulla, bona. T, by his will, devised to the plaintiif all the debts due to him irom the estate of B. To recover the amount of the aforesaid bond, bills, a,nd residue of annuity, a bill in ifiquity was filed against the issue in tail, under the will of A. Decided, that whether the annuity was extinguished or not at Law, by the bond and bills it was so in Jiquily, and that the plaintiff had mistaken his right as well as his remedy.
    This was a suit in equity, instituted originally by the appellants against the appellee, in the County Court of Spotsyl-vania. The material facts in the case are as follows viz.
    A. Spotswood the grandfather of the appellee, on his marriage, settled an annuity of j£500 on his wife payable quarterly, and charged his Mine tract of land therewith ; with power of distress, and nomine peen as. By his will, he devised all his estate to his son John, the father of the ap-pellee, in tail. After the death of the G. father, John entered upon the estate devised to him; and his mother, by deed, released to him one half of her annuity, and then intermarried with Mr. Thompson, the father of Mrs. Gray, and the testator of the other appellant. John Spotswood previous to his death, gave to Mr. Thompson two bonds, and drew two several bills of exchange in his favor, for the amount of the arrears of the annuity then due, and shortly after died. The bills were negoci-ated by Thompson, and finally same by assignment into the hands of a Mr. Walker, who commenced suits thereon, against the executors of John Spotswood, and having obtained judgments, took out execu-lions, *which were returned “nulla bona. It does not appear, in whose possession those bills are. The plain tiffs have them not. Mr. Thompson, having by his will devised to the appellant Mrs. Gray, all the debts due to him from the estate of John Spotswood, also departed this life. The appellee, is the eldest son and issue in tail of John Spotswood.
    The County Court, decreed to the appellants Gray and Wife, the full amount of the bills of exchange, with 10 per cent, damages; also the amount of the two bonds, and nearly one years annuity, which became due after the bills and notes were given; (deducting therefrom, a sum due from Thompson, for land of the appellees, sold to him by John Spotswood the father,) with interest thereon: and the Mine tract was decreed to be sold, to satisfy this decree, unless discharged by the appellee, within a limited time.
    John Spotswood the father, by his will, devised all his estate (not intailed) to his son John.
    The decree of the County Court was upon appeal to the High Court of Chancery reversed, from which, the present appellants appealed to the Court of Appeals; and a majority of that court notchusing to sit in the cause, a Special Court was summoned.
    Warden for the appellants. There are two questions to be- considered.' — -1st, 'Whether the mine tract is liable to satisfy the appellant’s demand. — And 2dly, Whether a Court of Chancery has jurisdiction of the case.
    The first point is dependent upon another, to wit, whether the annuity be extinguished or not, by the bills and bonds? I am to contend that they are not. The annuity, being of as high dignity as a bond, and higher than a bill of exchange, cannot be extinguished by them at law, or in equity: they are.only additional securities. If the annuity exist at law, surely a Court of Equity will not assist, to take away the security, so long as the debt continues unpaid.
    Upon the second point; it is the peculiar province of a Court of Equity, to assist in cases, where there is not a compleat remedy at law. This is to be presumed in the present case, as the defendant in his answer, hath not set forth; that there was property on the premises subject to distress, sufficient to satisfy the annuity.
    Washington for the appellee. A Court of Chancery has not jurisdiction in this case, whether the annuity be extinguished or not. If the latter, then the executor by the 32 Hen. 8, *might have distrained on the land, in the possession of any person, claiming by, or from the G. father; or, he might have maintained an action of debt at common law, against the executors of John Spotswood, for the rent accruing in his life-time. Co. Litt. 162 b. S Co. Rep. 118, 4 Col Rep. Ognels case. Fairfax v. Lord Derby, 2 Vern. 612, which last case, is in point as to jurisdiction. A Court of Chancery will never interfere in cases of this sort, unless the remedy be lost at law, by fraud in the tenant, as by depasturing the land &c. 1 Eq. Ca. Ab. 32.
    If the annuity be extinguished, then it is too clear to be argued, that the remedy was only at law against the executors of John Spotswood. But if the appellants do come into a court of equity, then I contend, that though the annuity might not be extinguished at law, yet it will be considered as being so in that court, and of course, the remedy could only be against the executors, and not against the issue in tail. After so long an acquiescence on the part of Thompson ; his absolutely negociating the bills; and of course receiving the amount of them, long ago, this court, will presume an agreement between the parties, that the bonds and bills, should be accepted as a discharge of the annuity, and as an exchange of the security. In any point of view then, the decreed of the County Court against the issue in tail, was erroneous.
    But this is not the only error. The decree, is for the amount of the bills of exchange, in favor of the legatee, although neither the legatee, nor the executors of Thompson are in possession of the bills, nor-entitled to the benefit of the judgments recovered upon them, by assignment from Walker, or otherwise; and although Thompson, has once received the value of them, | from the person, to whom he endorsed them, (as is to be presumed,) and neither he, nor his executors have been called upon by Walker to pay them, and probably, never may be called upon.
    The most which the appellants could ask for, would be security, to indemnify 'them in case the amount of those bills should be hereafter recovered of them, and even this, could not with propriety be required of the heir.
    But if the appellee be liable, to pay the amount of these bills, Mrs. Gray has no right to it, since this is not a debt due to Thompson from Spotswoods estate, and therefore is not included in the devise to Mrs. Gray.
   The court was unanimously of opinion, that the appellants remedy, if any he had, was at law. That whether the ^annuity was extinguished or not, at law, it was so in equity, under all the circumstances of this case, and that of course the appellants had mistaken their right, as well as their remedy.

The decree of the High Court of Chancery was affirmed.  