
    
      Mason v. Nelson.
    May, 1840,
    Richmond.
    (Absent Pabkhr, 1.)
    Bonds — Judgment—Relief Where Obtained by Surprise* —Case at Bar. — A. & B. execute their joint bond for 200 dollars to C. & D. who endorse that the whole amount is to be paid to C. and to him it is accordingly paid by A. who takes his receipt therefor, but does not get in the bond. A. individually executes another bond to C. for 163 dollars. A writ of capias ad respondendum in debt on bond 200 dollars, being sued out in the names of C. & D. against A. (without mentioning his co-obligor B. who is then dead) is served upon A. who suffers judgment in the action to pass against him by default. Afterwards a suit in equity, for relief against the judgment,'is brought by A. against C. and a third person, M. to whom the bond for 200 dollars had been transferred, and for whose benefit the action had been prosecuted : in which suit A. shews that his payment of that bond to C. was made without notice of its transfer to M.; alleges that C. at the time of such payment, promised to deliver up or destroy the bond ; and, for tailing to make defence at law, assigns the excuse, that he was led by the circumstances of the case to believe, and did believe until after the judgment, that the action was founded on the bond for 163 dollars, which was justly due. On appeal by M. from decree perpetuating injunction to the judgment, Held (dissentiente Brooke, j.), the case made by the appellee entitles him to relief in equity ; but M. will be entitled to receive the amount of the bond for 168 dollars, and the injunction must be dissolved as to that amount and the costs of the action at law (but without damages), unless the appellee shall establish that the said bond has been paid by Mm to C. before notice of M.’s interest in the transaction, or assigned by C. to some third person having title superior to that of M.
    In the circuit superior court ot Orange, at October rules 1832, James Nelson junior filed a bill in equity against Landon Lindsay and Daniel Mason, setting forth, that some time in-, he executed to Lindsay a bond for-: that afterwards, jointly with W. L. Hume, he executed to Lindsay another bond, for-: *that on the -, he paid to Lindsay the full amount of this last bond, and took his receipt for the same: that shortly thereafter he was served with a writ, in the name of said Lindsay, for debt: that, supposing the action to be founded on his individual bond to Lindsay, he made no defence, and a judgment was obtained against him : that he has since found that the judgment was for the amount of the paid bond, which has been assigned to Mason, though the plaintiff, at the time of the payment, had no notice of that assignment : and that, until after the judgment was recovered, the plaintiff did not know that the suit was in the superior court, but supposed it to be in the county court. Wherefore he prayed an injunction to restrain the defendants from proceeding on the judgment.
    An injunction was granted according to the prayer of the bill.
    On behalf of the defendants respectively, demurrers were filed to the bill, as not shewing any title of the plaintiff to relief.
    In this state of the cause, the plaintiff, by leave of the court, filed an amended bill, setting forth his case somewhat differently, and more in detail. This bill stated, that on the ■- day of —-, the plaintiff executed to Landon Lindsay and Lewis Lindsay jointly, or to Landon Lindsay individually, a bond for a debt due from him individually. That on the 21st of January 1828, one W. L. Hume (since deceased) and the plaintiff, whojrad been partners in business, executed to Landon and Lewis Tfindsay their joint obligation for 200 dollars, payable on the 25th of December ensuing; on the back of which an endorsement was made in these words — “The whole amount of the within is to be paid to Landon Lindsay, on account of the extra improvements which he put at the springs after the partnership was dissolved. March 1, 1828.” (Signed) “ L. & L. Lindsay.” That the plaintiff afterwards paid to *Landon Lindsay the full amount of the last mentioned bond, and took his receipt" for the same. That at the time of the payment, Lindsay said he had not the bond with him, but promised to deliver it up to the plaintiff, or destroy it. That, instead of complying with this promise, it since appears he transferred the hond to the defendant Mason. That a suit was instituted in the circuit court of Orange, in the names of Landon Lindsay and Lewis Lindsay, upon the bond which had been paid ; and when the writ, which was against “James Nelson junior, ” and not against James Nelson junior as surviving obligor of W. L. Hume and James Nelson junior, was served upon this complainant, he supposed that the suit was brought upon the bond given for his individual debt; under which impression, and knowing that debt to be justly due, he made no defence to the suit, but suffered judgment to pass by default. That he had no notice of the transfer of the bond to Mason, at the time of paying the amount thereof to Lindsay ; nor did he know or suspect, until ■ after the judgment was obtained, that the bond so paid had been transferred, or had not been destroyed, or that it was the subject of the action.
    The bond for 200 dollars with the endorsement thereon, the receipt for the amount of that bond, and the writ of capias ad respondendum, referred to in the amended bill, were exhibited therewith. The receipt bears date the 1st of November 1831, and the signature was proved to be the handwriting of Landon Lindsay. The individual bond of the complainant, also referred to in the amended bill, was produced in evidence. It bears even date with the receipt for the amount of the other bond, namely, the 1st of November 1831, and is executed to Landon Lindsay individually, for 163 dollars 71 cents, payable on demand.
    To the amended bill, neither answer nor demurrer was put in by either of the defendants : and it appearing *that Landon Lindsay was not an inhabitant „of the commonwealth, an order of publication was entered and executed against him. As to Lindsay, both the bill and amended bill, and as to Mason, the amended bill, were taken pro confesso.
    W. S. Erazer, a witness examined in the cause, deposed, that on the 2d of January 1832, the deponent, as deputy sheriff of Orange county, served a writ upon the complainant Nelson, at the suit of Landon and Lewis Lindsay, which suit was brought to recover the sum of 200 dollars. This was the only writ he ever executed upon Nelson. Nelson expressed some surprise at the amount, and told deponent that he had executed his bond to X^andon Lindsay, but for a less sum than 200 dollars, somewhere about 160 or ,170 dollars, and he supposed that was the bond on which the suit was brought, as it was the only debt he owed Lindsay ; but, he said, he might be mistaken in the amount. Deponent thinks he did not shew the writ to Nelson, but only informed him that he had a writ against him for the amount of 200 dollars.
    The deposition of Mann A. Page, another witness examined in the cause, is in the following terms : “The deponent, being sworn, deposeth and saith, that he was employed by James Nelson senior to prosecute a suit upon an injunction bond, in his name as executor of Henry Wood, against Landon Lindsay and Launcelot Lindsay ; that he obtained judgment, and by direction of Richard Richards agent for James Nelson senior, who employed him to bring the suit, he allowed said bond as a credit to the execution in the name of Wood’s executor against Lindsay, which this deponent did, and said bond is now in his possession ; which bond is in the following words and figures, to wit(Here the complainant’s individual bond to Landon Lindsay for 163 dollars 71 cents was copied.)
    *The cause coming on to be heard upon the bill, amended bill, demurrers to the bill, exhibits and depositions, the court overruled the demurrers, and directed an issue to be made up, and tried by a jury at its own bar, to ascertain whether or no the plaintiff did pay to Landon Lindsay the amount of the bond for 200 dollars, before notice of the assignment thereof by Lindsay to Mason. A jury being accordingly impan-neled at a subsequent term, found that the plaintiff did make such payment, before notice of such assignment.
    The cause wss finally heard the 2d of October 183S, on the papers formerly read and the verdict of the jury : on consideration whereof the court decreed that the injunction awarded the plaintiff be made perpetual, and that the defendants pay him his costs of this suit.
    On the petition of Mason, an appeal was allowed from the decree.
    Patton for the appellant: there was no counsel for the appellee.
    
      
      Chancery Practice — Fraud—Surprise. —The principal case is cited in Holland v. Trotter, 22 Gratt. 139, 141, and foot-note; foot-note to Byrne v. Edmonds, 23 Gratt. 200 ; foot-note to Parrill v. McKinley, 9 Gratt. 1; Ferrell v. Allen, 5 W. Va. 46 ; Knapp v. Snyder, 15 W. Va. 441.
    
   TUCKER, P., and CABELL and STAN-ARD, J.,

concurred in the following entry :

BROOKE, J-, dissented.

“The court is of opinion that the case made by the bill, ánd sustained by the proofs, entitled the appellee to relief in equity. But the measure of that relief depended upon the state of facts in regard to the bond for 163 dollars 71 cents, which ought to have been ascertained by proper proceedings before final action upon the case. The appellee in his bill admits, that at the time of the institution of the action at law, that debt was justly due, and supposing that to be the subject of the suit, he designed no defence to it. Although therefore the 200 dollar bond had been paid, Nelson still owed Landon Lindsay 163 dollars 71 cents, to which Mason was equitably entitled. And unless Nelson had paid that sum to Landon Lindsay before notice of Mason’s interest *in the transaction, or unless the bond had been assigned by Lindsay to some third person without notice of Mason’s rights, he must still be liable to Mason for that amount. By the pleadings and proofs, it neither appears that the bon'd for 163 dollars 71 cents has been paid by Nelson, nor that it is not still in Lindsay’s hands. The confused and almost unintelligible deposition of Page would seem to indicate, indeed, that Lindsay had disposed of the bond; but when or how, does not appear. In this state of the case, the court is of opinion that it was erroneous to perpetuate the injunction as to the whole amount of the judgment, since, upon the pleadings as they now stand, Mason would appear to be entitled to this 163 dollars 71 cents, as Nelson states it was unpaid when suit was brought, and neither alleges subsequent ■payment, nor assignment by Lindsay to a third person. The court is therefore of opinion that the said decree is erroneous. Therefore it is decreed and ordered that the same be reversed and annulled, and that the appellee do pay unto the appellant his costs by him expended in the prosecution of his appeal. And it is ordered that the cause be remanded to the circuit superior court, with instructions to dissolve the injunction as to the sum of 163 dollars 71 cents, with interest thereon at the rate of six per centum per annum from the 1st day of November 1831 till paid, and the costs of the action at law, without damages, unless the appellee, by proper proceedings, shall establish to the satisfaction of the court that he hath paid the amount of the said bond before notice of Mason’s interest in the transaction, or that the bond hath been assigned by Lindsay to some third person, who hath title to the same superior to the equitable right of the said Mason.”  