
    *Morgan v. Carson.
    February, 1836,
    Richmond.
    (Absent Cabbed, J.)
    Equity Practice — Failure to Defend at Law — Right to Resort to Equity — C. is indebted to M. by bond, and M. is at the same time indebted to C. for services as an overseer, though the rate of his wages is not fixed by contract; M. brings suit against C. on the bond, and recovers judgment by default; and then C. files abill in equity to in join proceedings on the judgment, alleging a reason for his failing to defend himself at law, which however he does not prove to be founded in fact; Heed, G. had complete remedy at law, either by action of assumpsit on a quantum meruit, or by way of set-off in M.’s action againsthim, and as he does not prove his excuse for not defending himself in that action, the court of equity has no jurisdiction to relieve him.
    Quere, whether, if he had proved his excuse for not defending himself at law, his case would have beenrelievable in equity?
    A bill was exhibited by Carson against Morgan, in the superiour court of chancery of Lynchburg, alleging, — that Morgan employed Carson as his overseer, first at a particular plantation for ■ a single year, at the stipulated wages of 173 dollars; and af-terwards Morgan employed him to superintend all his plantations, some of which were distant from the others; but the rate of wages for this service was not fixed, it being agreed, that Morgan should pay Carson as much as his services were worth. That Carson performed the service of general superintendant of all Morgan’s plantations for three years, and charged for this service 300 dollars a year, which was a reasonable charge. That Carson during the time sold Morgan tobacco, and Morgan paid some debts for him, which transactions were stated in an account rendered by Morgan, in which, however, no credit was allowed Carson for his three years services. That allowing Carson such credit for his services, Morgan would be indebted to him, on a fair settlement of accounts, above 200 dollars. That nevertheless, Morgan ^having acquired a bond, which Carson had executed to other persons for 313 dollars, had brought suit upon the same against Carson, and recovered a judgment. That Carson would have defended himself in that suit at law; but, thinking that the suit had been brought in the circuit court of Campbell, he retained counsel to defend him there; who, not finding the suit on the docket of that court, applied for information to Morgan’s attorney, and learned from, him that the suit was in the county court; whereupon it was agreed that the suit should be transferred to the circuit court, but before the next ensuing term of the circuit court, an office judgment was confirmed in the county court. Therefore, the bill called for a discovery of the contracts between the parties, and prayed an injunction to stay proceedings on Morgan’s judgment at law, and a decree for the balance due to Carson on the account.
    The injunction was awarded.
    Morgan made no objection to the jurisdiction of the court of chancery, but in his answer defended himself upon the merits ; giving a different account, in many particulars, of the contracts between him and Carson for Carson’s services as his overseer and as general superintendant of his plantations, and insisting that the compensation Carson claimed for the latter was unreasonable.
    Many depositions were taken and filed, all relating to the merits of the controversy. But there was no evidence proving the facts alleged in the bill, to account for and excuse the failure of Carson to defend himself in the suit at law.
    The chancellor referred the accounts to a commissioner; and upon his report, decreed, that the injunction should be perpetuated, and that Morgan should pay Carson 26 dollars with interest &c. and the costs of suit. From which decree Morgan appealed to this court.
    *The cause was argued here by Johnson for the appellant, and Robinson for the appellee,
    upon an objection taken by Johnson to the jurisdiction of the court of chancery; because, as he insisted, the plaintiff might either have defended himself at law, and had not proved the excuse he alleged for his failure to do so, or he had a complete remedy at law by action of assumpsit on a quantum meruit for his services. Robinson argued, on the contrary, that the bill stated a case proper for relief in equity; and that, as the defendant, had nowise objected to the jurisdiction, so as to call for proof of any fact necessary to sustain it, but had defended himself on the merits, the chancellor at the hearing, and much more this court, could pay no regard to the objection. He referred to 1 Rev. Code, ch. 66, $ 86, p. 214, and cited Brick-house v. Hunter, 4 Hen. & Munf. 363; Hickman v. Stout, 2 Leigh 6; Vanlew v. Bohannan, 4 Rand. 537. The facts alleged in the bill to excuse the failure of the plaintiff in equity to defend himself in the suit at law, not being denied, proof of them was not necessary; Page’s ex’or v. Winston’s adm’r, 2 Munf. 298.
    
      
      Equity Practice — Failure to Defend at Law — Right to Resort to Equity. — On this question the principal case is cited in foot-note to Haden v. Garden, 7 Leigh 157.
      Same — Failure of Bill to State Equity. — The principal caséis cited in Green v. Massie, 21 Gratt. 362, and note: Hudson v. Kline, 9 Gratt. 384: Buffalo v. Town of Pocahontas, 85 Va. 225, 7 S. E. Rep. 238; Boston Blower Co. v. Carman Lumber Co., 94 Va. 100, 26 S. E. Rep. 390. The principal case is also cited in Bailey Construction Co. v. Purcell, 88 Va. 302, 13 S. E. Rep. 456.
    
   TUCKER, P.

The value of the appellee’s services was the only matter in litigation in this case; and I am clearly of opinion, that it would have been much better settled had he brought his suit at law, than it can be before a commissioner of the court of chancery. Were the case properly in court, I should think that an issue should have been directed rather than an account. It is not, in short, a case for an account, and therefore this court has not jurisdiction of it. It is a simple question of quantum meruit, which is always best settled by a jury of the country.

There are two grounds on which it was contended that a court of equity has jurisdiction of the case. The first is, that the plaintiff had a good defence at law, which he was prevented from making by surprize or ^accident. But this cannot avail him, because the facts he states were, if true, clearly susceptible of proof, and that proof has not been adduced. In this regard, then, the case stands nakedly thus — that the plaintiff seeks here to arrest a judgment at law, upon a ground of de-fence which might have availed him in a court of law, and which he neglected to make. Such an attempt cannot receive the countenance of this court. A long train of decisions, no longer necessary to be cited or reviewed, leaves us no room for hesitation in dismissing such a case from the equitable forum.

The second ground on which the jurisdiction was supposed to rest, is the character of the demand. And here, I readily admit, that if the court had jurisdiction of the subject or demand, though it was improper to award an injunction, yet the court might properly proceed with the cause, provided the right of the party was not concluded by the trial at law. I am inclined to think, in this case, it was not so concluded. My impression is, that the demand of Carson against Morgan was not a good legal set-off; for unliquidated damages are not a matter of set-off at law, more than in equity. And, moreover, a defendant has the election either to set off his demand, or if he prefers it, to institute his cross action. The omission of Carson, then, to set off his claim for services did not conclude his right to recover the value of them. But the question recurs, whether this demand was a proper subject of equitable jurisdiction? I think it was not. It is an action in equity for damages, arising, indeed, out of a contract, but still a naked action for damages. This cannot be sustained in equity. In Robertson v. Hogsheads, 3 Leigh 667, 673, it was said — “A bill for damages only will not lie in equity. The court could only ascertain these damages by sending the case to a court of law. To that court, therefore, the party should apply, instead of clogging the litigation by a suit in equity, which could *only end where he ought to have begun. Would it be just, that the defendants should be charged with the costs of this unnecessary proceeding?” Ought the suitor to be permitted to go through the court of chancery, to get into the court of law, instead of going into the court of Law at once? Surely, this would be a gross abuse in any system of jurisprudence. Again, in Smith v. Marks, 2 Rand. 449, a bill was filed by a carpenter against his employer, to recover the balance due him for building a house. Now, this was exactly like the case at bar, which is for services performed as an overseer. Both are cases of quantum meruit. In that case, judge Carr, delivering the opinion of the court, observed — “In the case before us, I think a court of law can not only give a remedy, but a more complete remedy than a court of equity. It is a simple matter of contract and work and labour. The plaintiff says, he has built the house according to Contract and must be paid. The defendant says, he has done his work badly,” [so says Morgan here] ‘ ‘has broken his contract, and has received as much as he deserves. Now, this seems to me a case peculiarly apt for the decision of a jury of the country; men who understand these matters, and who, with the witnesses before them, with counsel to assist, and a court to superintend the whole, would settle fairly such a matter as this in one hour: whereas in equity, it has been depending nineteen years. The commissioner charges for 76 hours, making a fee of 57 dollars. The record is stuffed with innumerable depositions, and the costs 'of the whole cannot be less than 200 dollars. Is not this monstrous?” Accordingly, this court affirmed the chancellor’s decree dismissing the bill, and turning the party round, after nineteen years, to begin de novo at law. It cannot but strike the most careless observer, that every word in this opinion tells in its application to the assertion, in a court of equity, of Carson’s demand for corn-pensation as an overseer. "'The cases are, in the view we are now taking, altogether parallel, and this must share the fate which overtook that after a fruitless race of nineteen years. »

I am of opinion, therefore, that the decree be reversed, and the bill dismissed.

The other judges concurred. CARR, J., added, (by way, he said, of exclusion of a conclusion) that he did not think the excuse alleged in the bill for the failure to make defence at law, would have been sufficient to sustain the jurisdiction, even if it had been proved, which it was not. The case was assumpsit on a quantum meruit for work and labour done, and was altogether unfit for a court of equity.

Decree reversed, and bill dismissed.  