
    Lewis’ executors vs. Brooks and others.
    
    Where one of several administrators renounces or surrenders the administration, the county court has no authority to grant an administration de bonis non.
    
    The grant of administration is an entire thing, and when granted to several, if one dies or resigns, the entire authority remains with the survivors.
    A grant of administration de bonis non, where all of the original administrators are not dead, and when all have not surrendered the trust, is void.
    The compromise of a right, made by an administrator de bonis non, appointed under such circumstances, has no binding effect or validity.
    Distributees, as such, have no power to compromise a suit prosecuted by the administrator, without his consent.
    A power of attorney from distributees, authorizing A “to attend to all the business, both of the real and personal estate,” confers no power to compromise a suit prosecuted by the administrator.
    Where the defendant in equity applies for an order to take the deposition of a complainant, and it is accordingly taken, his testimony is competent for all purposes, though in discharge of himself.
    Equity will not relieve when the defence can he made at law; but when the party had no legal proof of the matter constituting the defence, and did not attempt it, it forms an exception to the rule.
    Lapse of time is always regarded in equity; but when an agreement under seal had been rescinded, and after a lapse of twelve or fourteen years, suit was brought upon it and a judgment obtained; held, that lapse of time was'no bar to the defendants at law, who filed their bill shortly after the judgment was obtained.
    In this cause it appears from the pleadings and proof, that on the 10th day of July, 1802, William T. Lewis and Matthew Brooks made an agreement of that date under their hands and seals, reciting that William T. Lewis had recovered a judgment against the heirs of John Armstrong for upwards of fifteen hundred dollars, and the said Matthew Brooks was entitled to a judgment obtained by Jesse Lester against the estate of said Armstrong; they agreed to divide whatever might he collected on their respective judgments. > This agreement was placed in the hands of Thomas Crutcher to hold for the . parties.
    In a few days after its execution, Lewis and Brooks, as is proved by Mr. Crutcher, went to Crutcher and told him they had agreed to rescind said contract. On this information Crutcher threw the paper upon the counter, and Brooks took it up, as he, Crutcher, supposed, to destroy it: and the parties left the store. This allegation is denied. Brooks lived until the year 1810, and Lewis lived several years longer. Nothing was ever heard of the agreement until after the death of both parties. In 1814, the administrators of Brooks brought suit on the said agreement against the executors of Lewis. No plea to the merits was filed, but the cause went off on a demurrer to an immaterial plea. In 1823, the administrators of Brooks, consisting of Arthur, Robert, and John Brooks, obtained a judgment for about three thousand dollars against the executors of Lewis, of whom Crutcher was one.
    In 1824, Arthur Brooks, one of the administrators, having died, John Brooks went into the county court of Davidson and resigned acting as administrator of Matthew Brooks, deceased; whereupon the same court appointed John F. Stump, a grandson of Matthew Brooks, and the said John Brooks, administrators de bonis non of the estate of Matthew Brooks, deceased. John Brooks and Stump executed an administration bond, and gave as securities Matthew Brooks, Jr. James Brooks, Robert Brooks, (the former co-administrator of John and Arthur Brooks) and William Brooks.
    The execution on the judgment of Lewis’ executors having been returned not satisfied, in 1824 a scire facias was issued to subject them de bonis propriis. This scire facias was in the name of Robert and John Brooks, surviving administrators. While this scire facias was pending, John F. Stump, (who had been appointed, together with John Brooks, administrator da bonis non of Matthew Brooks) made a compromise with the executors of Lewis. In this compromise he received four hundred dollars in cash, and acknowledged the receipt of twelve hundred dollars in land, in full discharge of the judgment, for which he executed an acquittance as administrator of M. Brooks. Before the writings were signed, or the money paid in execution of this compromise, Crutcher (the executor with whom Stump made the agreement) was warned by John Brooks not to make the compromise, and notified that it would not be sanctioned or regarded. On the 29 th March, 1823, a power of attorney was executed by a portion of the distributees of the estate of Matthew Brooks, deceased, among whom were John and Robert Brooks, the two surviving original administrators, to John F. Stump, whereby he was authorized “to attend to all the business both of the real and personal estate.”
    ' John Brooks and Robert Brooks, the two surviving original administrators, disregarded the compromise made by John F. Stump with the executors of Lewis, and continued to prosecute the scire facias. To enjoin the farther prosecution of this suit, and for relief in the premises, the executors of Lewis have brought this bill.
    The defendants, in their answers, rely upon the act of limitations and lapse of time. The bill was filed on the 16th January, 1S29. The defendants, whilst the cause was pending in the chancery court, applied for an order to take the deposition of Thomas Crutcher, one of the complainants. This not being objected to by the complainants, the order was made. Crutcher’s deposition was taken, and the foregoing facts in relation to rescinding the agreement were proved by him.
    The Chancellor decreed a perpetual injunction against the judgment.
    
      
      A. Batch, for the complainants.
    Upon the proof and pleadings in this cause several questions arise; and
    1. It is insisted by the defendants, that the complainants are precluded from coming into a court of chancery, because if the contract between Lewis and Brooks were cancelled, the fact could have been proved, and would have been admitted as a defence in the court of law where the suit on the covenant was brought.
    It will not be denied that equity has jurisdiction to cancel contracts between parties, that the same may be delivered up, or to cause them to be delivered up, where the parties have cancelled them, and the parties holding them refuse to do so. In this case then, had Lewis in his lifetime filed his bill against Brooks, requiring him to deliver up the covenant in question, and proved by Crutcher the facts which he has proved, the jurisdiction of the court would have been wholly unquestionable and unquestioned. But we are to enquire whether complainants are ousted of a remedy in a court of chancery by the facts which are found in the record, and the fact that complainants were sued in a court of law; and this brings us to examine in what cases, and under what circumstances, parties after a trial at law, may come into a court of chancery.
    It will be maintained that as a court of equity would have had jurisdiction to deliver up the covenant sued on at law in this cause, and the question of cancellation not having be.en made or in any wish examined in the court of law, the Chancellor had power to give relief, and has not erred in so doing. See 17 Johnson, 38: Atkinson vs. Leonard, 3 Brown’s Ch. Cases: 9 Ves. 464: 7 Ves. 19: 1 Atk. 126: 1 Sch. and Lef. 205: Rathbone and Rathbone vs. Warren, 10 John. 587, a case directly in point.
    If equity has jurisdiction of the matter in question, as is maintained confidently by the counsel of the appellees, upon the authorities and on the ground of the compromise, then
    The second question is, had Stump authority to make the compromise as administrator and as attorney in fact of the heirs of Matthew Brooks, deceased. It is conceived that this question has been fully decided in the case of M’Gowan against Wade, reported in 3 Yerger’s Rep. 375, where the question came up directly for the opinion of the court, and is deemed conclusive.
    3. The evidence of Crutcher was sought for by the appellants, and the witness proves in the most positive manner the cancellation of the contract, and the surrender of the same in consequence of that cancellation, and strengthens his testimony by the proof of the fact that Lewis and Matthew Brooks were neighbors for ten years after the date of the contract, and nothing was ever done by Brooks concerning the same. Crutcher being the depository, the withdrawing it from the depository was a cancellation.
    
      T. Washington, for defendants.
    1st. John F. Stump was not an administrator of Matthew Brooks, deceased. In making the compromise, the complainants dealt with him in that character alone; and the effect of the compromise must depend upon the authority of both parties to make it. The principle contended for, that it was competent for John Brooks to resign, and for the court to appoint J. F. Stump as administrator of Matthew Brooks, is unsettled by the decisions of this court. It was so decided in M’Gowan vs. Wade, (3 Yerger’s Rep. 375,) by a majority of this court. But it was decided otherwise in Marshall vs. Catron, by the unanimous opinion of the court. The preponderance of authority, therefore, is against the validity of Stump’s appointment. But, whether the law was correctly laid down in M’Gow-an vs. Wade, or not, is immaterial to this case. That case only decides, that an administrator may resign, with the assent of the court. Robert Brooks was a co-administrator with John Brooks; and when the latter resigned, the entire administration belonged to the former. Robert Brooks never resigned, and the resignation of John Brooks did not affect his office of administrator. The administration is an entire thing which lies in grant; and the grant having been made to John and Robert Brooks jointly, and Robert Brooks never having been divested of the grant, when the court undertook to appoint Stump, nothing remained in the gift of the court to constitute a subject matter of the grant, that having already passed to Robert Brooks.
    2d. The compromise itself, was a gross fraud; the complainants ask relief because of that compromise. Those coming into a court of equity, must have clean hands; and the aid of it, will never be given to enforce a fraudulent transaction. Newland, 65, 66, 67. That it is fraudulent is evident; 1st. From the smallness of the consideration paid by complainants, for the satisfaction of a judgment for more than three times as much against a perfectly solvent estate. 2d. The consummation of the compromise, in opposition to notice from the lawful administrator. 3d. The judgment being in the names of John and Robert Brooks, the scire facias pending against the complainants being in the same names, and the compromise being with a distinct person, no party either to the original suit, or to the sci. fa. 4th. The concurrence of John and Robert Brooks in the compromise, was not sought, but their non-concurrence disregarded. 5th. The direct tendency of the compromise was, to throw a responsibility upon the administration bond, which would not have existed without it, and to involve innocent sureties; thus increasing litigation, the ultimate effects of which in this case, would fall on John and Robert Brooks.
    3d. Aside from the consideration that the compromise was fraudulent, the gross inadequacy of it on the side of the complainants, is an effectual bar to the specific exe- . k . cution ot it.
    4th. This is not a hill with a double aspect, filed to carry into effect the compromise, if it can be done; but, if it cannot, to impinge the consideration of the judgment-All that is said in the bill upon the subject of the satisfaction of the covenant, is introduced by way of recital, and is given as a reason why the compromise was made, and not as a distinct and substantive statement, upon which a decree vacating the judgment is to be founded.
    Had a distinct and substantive statement of that kind been intended, it would have been set forth with time, place and circumstance; such particularity would have been observed as that an issue could have been made upon the facts stated, which would have notified the defendants of the case intended to be made out in proof, and have given them an opportunity of rebutting such a case.
    If it is a bill with a double aspect, each aspect ought to be so stated, as that, if standing alone, it would make a good bill. Now, suppose that nothing were said in this bill about the compromise, and also, that the matter relative to the satisfaction of the covenant, were stated in no other manner than it is done in what is termed the second aspect of this bill, to wit, that the contract having been rescinded in the lifetime of Matthew, and as the complainants could not successfully defend themselves at law, there being no legal proof that the agreement was rescinded, judgment was given against them. I ask the most inexperienced draftsman whether such a bill would not be demurrable for vagueness and generality? And, if such a bill would have been demurrable, whether demurred to or not, no prayer annexed to it can be regarded, because every prayer must be authorized by the statement of facts contained in the bill; or in other words, must be a legitimate deduction from those facts. A conclusive proof that the bill does not contain the second aspect contended for, is, that it makes no appeal to the conscience 0f the defendants, and is not founded upon newly discovered evidence, since the trial at law. And it was only by the accident of the death of Thomas Norman, which occurred after the filing of the bill, that Thomas Crutch-er’s evidence, which is the only evidence relating to the satisfaction of the covenant, was gotten in: but the bill was not filed with a view to let in his evidence; it sets up no such pretension, which would have been wholly inadmissible if it had; and it was only by the necessity of the circumstances in which the defendants were placed, in consequence of the death of Norman, that that evidence was pressed into the service by the complainants, with what propriety will be seen in the sequel. An accident occurring pendente lite, however it may sometimes 'benefit a party by producing 01; destroying evidence, certainly cannot change the character of a bill. Mitford on PI. 34, 35, 31.
    5th. Even if the bill do contain the second aspect contended for, it is not sustainable under the circumstances of the case. Upon that supposition, the bill seeks to go back beyond the judgment, and to enquire whether, when it was rendered, there existed any cause of action, without treating the judgment itself as establishing any thing. Now, the point of cause of action or no cause of action, was* certainly directly involved in the issue which was tried at law, and the affirmative of that issue was fully established by the judgment. Does that signify nothing? According to the complainants’ view of this case, it does not, and the defendants stand in no better situation than if they had obtained no judgment at all. But, according to the view of the case which I entertain, if in reality, at the time of the trial at law, there was no existing cause of action by reason of the previous satisfaction of the covenant, or its having been rescinded, and there was no legal proof of such satisfaction or rescisión, except what rested in the plaintiffs at law, the defendants at law should have filed their bill of discovery as auxiliary to their defence at law, for the purpose of compelíate; a disclosure. The complainants cannot farst take their chance at law, without the exertion of all legal means to make their defence there effectual; and then, when they have proved unsuccessful at law, be permitted to treat the result of the trial at law as a nullity, and to occupy the same situation in this court, as if no such trial had taken place. This is the more especially true after a great lapse of time. But the aspect of the bill under consideration, does not contemplate a discovery from the defendants; indeed, they are not supposed, from the character which they sustained in relation to the suit at law, to possess any personal knowledge on the subject. Neither is said supposed aspect of the bill founded upon any newly discovered evidence, not known of at the time of the trial at law; and of course, there is no statement as to the time when the existence of any such- evidence came to the knowledge of the complainants. But the argument in support of such an aspect of the hill assumes the monstrous proposition, that a defendant in a judgment at law, can, at any indefinite length of time after the judgment, file a bill for the purpose of setting up any defence which he might have made at law, without assigning any reason for not filing it sooner, after having contested the suit at law for fifteen years, and without considering the judgment as having any force or effect whatsoever in this court. Mitford on PL 102 to 106. The judgment at law is conclusive; the party might have defended there, and equity in such case has no jurisdiction. Smith vs. Moore and Kearney, 3 Yer-ger’s Rep. 127: Durham vs. Thurmond, 3Yer. Rep. 99.
    6th. Crutcher’s evidence upon the subject of the res-cisión of the covenant, was incompetent and ought not to have been received.
    If the bill does not contain the second aspect contended for, the whole testimony was irrelevant. It is true, that he was made a witness by the defendants, but by them he was only examined as to the reception of notice from John Brooks not to make the compromise with Stump. His evidence relative to the satisfaction or res-cisión of the covenant, was brought out upon the examination of the complainants, of whom he himself is one.
    The rule of practice in equity, allowing a defendant to examine a plaintiff as a witness, is in analogy to that principle in equity which permits a defendant to file a bill of discovery against a plaintiff, of facts resting exclusively within his knowledge, and to enable the defendant to protect himself against the claim set up against him. The rule respecting the examination of a party as a witness, is designed to attain the same end precisely as a bill of the above description, and was substituted for it, to avoid expense and circuity. Now in a bill of discovery, an answer to the points only, respecting which the discovery is sought, can be made; and if the defendant in such a bill chooses to state any thing further than the discovery asked for, it is but redundancy and surplusage. If the defendants in this case, instead of examining Crutcher as a witness, had filed their bill against him, requiring him to discover whether, before he completed the compromise with Stump, he had not received a notice from them not to do so, surely his answer to that bill would not have authorized all the detail that he has gone into as a witness. 1 Newland’s Chan. Prac. 280: 15 Yesey, 178: 1 Pr. Williams, 596.
    7th. Upon the supposition, that Crutcher’s testimony was admissible, what does it amount to? Not that Lewis’ covenant to Matthew Brooks had been actually satisfied; he does not attempt to prove any such thing. But that it had been agreed that the covenant should be given up, and not considered as any longer existing. Was it given up? Not at all; but returned from Crutcher, who held it as Brooks’ depository, to Brooks, who in law, had the custody of it before; and by him it was retained until his death. What do these facts establish? A parol ex-ecutory agreement, unsupported by any consideration, which is attempted to he set up to countervail the covenant under seal.
    The length of time intervening between the date of the transaction spoken of by Crutcher, and the death of Brooks, furnishes only a very equivocal inference. If it was strange, that Brooks, during all that period, did not bring suit upon the covenant against Lewis, if he did not consider it done away with, it was equally strange, that Lewis, during the same period, made no effort to get in his covenant which he knew to be outstanding against him, and yet not in force, as he must have believed, if the evidence of the witness is to be taken as true.
    8th. The statute of limitations operates in this case to the following extent. If this is a bill for the specific execution of the compromise, the statute has no effect; because, there was not a lapse of quite three years from the date of the compromise to that of filing the bill, and for the additional reason, that time is not always of the essence of a contract, which, if subsisting, will be enforced after the period limited for its fulfilment, by the terms of it, unless in cases of very great delay, when a different principle applies. But if this bill is to be considered in either aspect of it, as a bill filed for the purpose of having the covenant between Lewis and Brooks cancelled, or to have the judgment founded upon it enjoined, no good reason can be perceived why the statute does not constitute a bar. The Chancellor who tried the -cause below was of opinion that the statute did not operate, because, the resort to the bill by the complainants, was a defensive measure against the judgment at law, with which the defendants were pursuing them. That distinction is new to me, and I must say, with all proper respect, unsatisfactory. Let us suppose that no suit had been brought upon the covenant, and that the lapse of a period had taken place,, not quite sufficient to create a presumption of its payment; and that then an original bill had been filed by the complainants to have it delivered up and cancelled upon an allegation of the facts sta-i, . f ° edin Crutcher s deposition. Would not the statute op-eratein such a case as that? I am unable to discern why it would not. Can there be any difference in principle, between the obtaining of a judgment upori the covenant, and the holding of it up, and thus continuing the maker’s liability? Surely not. In either case, the same right to file the bill existed from the date of the transaction spoken of by Crutcher, which was in 1802. In either case, the complainants would claim a benefit and seek to subject the defendants to a loss. Lewis, to be sure, was not, in a strict sense, a creditor of Brooks; and therefore the case does not fall within the very words of the act of 1715, ch. 48, sec. 9. But it appears to me, that it does come within the scope of the policy of that act, the object of which was to prevent stale demands from being brought forward against the estates of deceased persons at the end of seven.years, or more, after their death. And the estates of such persons are as likely to be injuriously affected by being deprived of a cause of action, as by being subjected to the operation of one; and the difficulty of proof and danger of its loss in either case is precisely the same.
    íf this is to be considered as a bill to have the covenant delivered up and cancelled, it may be assimilated to the action of detinue for the recovery of the same thing. And then, the application by analogy, of the act of 1715, ch. 27, sec. 5, becomes complete. But, if it should be contended that judgment having been rendered upon the covenant, precludes the idea of its delivery up for cancellation, my answer to that position is, that if the bar of the statute was effectual before judgment, it cannot be removed by the judgment. The judgment, to be sure, extinguishes the covenant; but if you seek to enjoin the judgment by impeaching the consideration upon which it is founded, you are necessarily remitted in this’ case to the transaction spoken of by Crutcher, and one party is confined to the judgment, its date and legal operation, while the other party is permitted to revert to all antecedent facts and circumstances, which either constituted matter of inducement to the judgment, or which tend to affect its validity. The first judgment in this case was rendered six years before the filing of the bill. Peck’s Rep. 38 to 47: 2 Jacob and Walker, 1: 7 Johnson’s Ch. 90: 10 Wheaton, 168: 2 Johnson’s Chancery, 150: 3 Johnson’s Ch. 129.
    9th. Length of time, as contradistinguished from the statute of limitations, will, beyond all doubt, close the door to an investigation of the transaction referred to by Crutcher. This principle is of very extensive prevalence in courts of chancery; it will even apply for the protection of trustees; and more especially does it operate, where the parties do not stand towards each other in any particular relation of intimacy and confidence. It is a law of this forum, designed for the most beneficial purposes, to prevent litigation, to guard against surprise, to protect society against the effects of time and accident, to ensure its repose, and to visit the consequences of delay upon those who have been guilty of it; and this law can no more be withheld from a party who claims its protection, than can any other by which right and justice are administered. 17 Vesey, 87: 1 Cox, 145: 4 Br. C. C. 125: 1 Br. C. C.551: 12 Vesey, 374: 2 Ball and Beat-tie, 118: 2 Sch. and Lef. 631-2-3: 1 Johnson’s Chancery, 48: 3 Johnson’s Chancery, 579, 246.
    
      F. B. Fogg, replied.
   Green, J.

delivered the opinion of the court.

The first question to be considered in relation to the compromise set out in the bill, is, had John F. Stump the legal power to make it? This will depend upon the validity of his appointment as administrator de bonis non, or, upon the extent of his powers under the letter of attorney. Although the county court of Davidson may have had the power, (as was decided in the case ot M’Gowan vs. Wade, 3 Yerg. 375) with the consent of John Brooks, to cause him to surrender up his administration, yet it does not follow that they could appoint another when all the administrators did not surrender the trust. The administration of the estate of Matthew Brooks, deceased, had been granted to Arthur Brooks, Robert Brooks and John Brooks. Arthur Brooks had died, leaving Robert and John surviving administrators, with all the power that had been vested in the three. No new administrator could have been appointed on the death of Arthur. The administration is an entire thing, and when granted to several, and one dies, the entire authority remains with the survivors. So when John, by his consent, was removed from the administration, the entire trust remained in Robert Brooks, whose rights, as administrator, could no more have been affected by John’s resignation than by his death. It follows, that the appointment of John Brooks and John F. Stump, as administrators de bonis non, was void, and conferred upon Stump no authority to compromise the rights of the estate.

The power of attorney exhibited in Stump’s deposition purports to have been executed by the heirs and dis-tributees of Matthew Brooks, deceased, and on the back of it a power executed by John Brooks and Robt. Brooks, the administrators, to Stump, authorizing him to manage the estate and “settle controversies by compromise or otherwise.” This last power of attorney, the answer says, was revoked before this compromise was made; and John F. Stump, in his deposition, says, “the last mentioned power was erased by Judge Trimble, because it was believed the preceding power was amply sufficient.” The distributees had no power, as such, to compromise a suit which was prosecuted by the administrator, without his consent. Consequently, they could confer no such power on John F. Stump. Furthermore, the power of attorney was executed by only a part of the dis-tributees, and could be obligatory on none of the others, But it never was intended by this power of attorney to authorise Stump to perform any act which belonged to the duties of the administrators. In proof of this, the administrators themselves executed to him a power the same day, and on the same paper upon which the one executed by the heirs was written. But this latter was revoked and cancelled before he made the compromise.

But it is insisted that although Stump may not have had the legal authority to make this compromise, yet, that he was clothed with the appearance of authority by the act of these administrators and distributees; who, by procuring him to be appointed administrator, and joining him in a bond as his securities, virtually gave up their own power, and in equity ought to be bound by his acts.

There would be much force in this argument had the compromise been made with the assent or connivance of the lawful administrators. But this was not the case. Mr. Crutcher was informed, before he made the compromise, that it would not be approved of by the administrators. It was his duty, then, if he was determined to proceed, to see that he dealt with a man who was clothed with adequate power to make the act he was about doing, binding upon all parties. Placing the case in the most favorable light for the' complainants, Stump could stand in no higher character than that of agent of the administrators. But in the exercise of this agency, the parties for whom he is acting perceive that he is about to make a contract injurious to their interests, and they notify the party with whom he is dealing, that they will not be bound by the act; surely, if he will go on after this warning, he; has no equity to enforce a specific performance against the principal.

Upon the grounds' presented in the aspect of the bill which has been considered', we are of opinion the complainants are not entitled to relief.

We come next to consider the case in relation to the .. . , , allegation that the contract was rescinded in a day or two after it was entered into. And here the counsel for the defendants insist that the case is not sufficiently stated in this aspect, to authorize a decree. It is true the circumstances and facts attending the rescisión of the contract are not so fully and minutely stated as is usual and desirable, but we think the facts are'so stated as to make them plainly and distinctly a ground for relief. The bill sets out the contract, and states expressly, that in a few days after it was entered into, it was rescinded by the parties. If it was rescinded, then clearly the defendants ought not to have the benefit of their judgment at law. How is the proof upon this subject? Mr. Crutcher says that when the contract was entered into, it was put into his hands by the parties for safe keeping; that the next day, or a day or two after, Gen. Robertson wished to purchase Mr. Lewis judgment; that Mr. Lewis said he could not let him have it until he could see Brooks and cancel the contract with him; that Robertson and Lewis both left the store in search of Brooks; and that shortly afterwards Mr. Lewis and Brooks came into the store, and Lewis told him in presence of Brooks, that himself and Brooks had cancelled their contract, and that the article was of no further service; that upon this information he took the paper from his desk and threw it on the counter, and that Brooks, as he left the store in company with Lewis, took it up as witness supposed to destroy it. Mr. Crutcher also says that Lewis told him he had let Robertson have the judgment, who would call and pay him next day; and that Robertson did pay him $1,640 for Lewis on account of his judgment against Armstrong. This testimony is explicit and conclusive as to the fact of the rescisión of the contract. But if it needed corroboration, the circumstances of the case tend strongly to convince the mind of the truth of the witness’ statement. It will be borne in mind that this covenant contained a provision obligatory on each, for the benefit of the other. Now it was. certainly not proper that either of the parties should have the possession of the paper, unless there had been a duplicate placed in the hands of the other. For if Brooks were to hold the paper he might produce it, if for his benefit, or suppress it if his interest required it. And so either party, by the possession of the covenant, would have had an undue advantage over the other. It was most natural that they should have placed it in the hands of some common friend. Nor is it likely it would have been given up to Brooks or Lewis-, except upon their joint application. There is therefore no sensible reason why the covenant should have gone into the hands of Brooks, except under such circumstances as are stated by Mr. Crutcher. The length of time, too, that the parties lived near each other afterwards, when Brooks most probably knew Lewis had sold his judgment to Robertson, during all which time nothing is heard of the covenant, until 1814, after the death of both parties, is a strong circumstance to show that Brooks regarded the contract as at an end. Upon the whole we think there cannot be a doubt but that the contract was rescinded by the parties soon after it was entered into. The slight discrepancy between Mr. Crutcher’s swearing in the bill and the statements in his deposition, are too inconsiderable to cast a shade of suspicion upon his testimony.

But it is insisted that it was not competent to prove these facts by Mr. Crutcher, he being a complainant in the cause. The defendants chose to make Mr. Crutch-er a witness, as by the rules of chancery practice they had a right to do. They applied for an order to take his deposition. The caption of the deposition states that it was taken by consent of both parties. We know of no rule by which a witness 'who is competent to testify for one party, is rendered incompetent to prove any facts in favor of the other party. As the defendants chose to make this party a witness, his testimony must be received for all purposes. If the defendants had chosen to confine the disclosures of Crutcher to any particular facts, they might have filed a cross bill for a discovery, and then that only would have been evidence which in the answer would have been responsive to the bill.

It is next objected to the relief sought by this bill, that the complainants could have made the^defence at law which forms the ground of their application to the court of chancery, and not having done so, this court cannot now take jurisdiction of the cause. This has been the only question upon which there has been any difficulty. In the case of Kearney vs. Smith, (3 Yerger, 127) this court held “that a party will not be aided by a court of chancery after a trial at law, unless he can impeach the justice of the verdict on grounds of which he could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party unmixed with negligence or fault on his part.” The court has adhered to the principle here laid down ever since, and has constantly refused to listen to a party who comes into equity after the matter has been tried at law, or where the negligence of the party alone prevented it. But we think this case does not come within the operation of the principles of the case of Kearney vs. Moore, It is true the matter of this bill would have been a good defence if pleaded to the action at law; but it is stated in the bill, and the fact is clearly so, that the complainants had no legal proof of the matter constituting their defence; and it would have been wholly unnecessary for them to plead it. It is said they ought to have filed a bill of discovery pending the action at law. Why do so? They could not have supposed it probable that Brooks’ administrator knew of the rescisión of the contract. Their answer to this bill shows that a bill of discovery would have been wholly useless.

We next come to consider the questions presented arising from a lapse of time, and the statute of limitations. Jio statute of limitations .has any application to this case. The complainants do not seek to recover any thing, Rut are on the contrary resisting the demand of the defendants.

-Time operates as evidence, and in many cases a bill will not he entertained after a great lapse of time, because such length of time is proof that the party had relinquished the right for which he was contending, or that it had been extinguished. But in a case like this no such presumption can exist. In 1802, Lewis supposed this contract was cancelled. It is not to be presumed that he knew Bimoks had possession of it, nor is it likely that Brooks had any design injurious to Lewis by such possession. There was up to 1814 no knowledge on the part of Lewis or his executors that any cause'of action existed. Time therefore, furnishes no evidence against them. Since the suit was brought they have been constantly resisting it, and thus constantly repelling all presumption that time otherwise might have raised.

Upon the whole we think the decree ought to be affirmed.

Decree affirmed.  