
    John Peace, adm’r. of John Dickinson, v. William Nailing et al.
    
      r, ... From Dr&imlJe.
    
      A Court of Kquity will not relieve against si judgment at law, unless the iiefcmta/it was ignor-nt of the fact in question pending the suit, or H could not be received at law, as a defence.
    Courts of Jiqui.y do not allow appeals to iln ro merely to obtain a new’ trial. And where a party, on being sued at law, attempted to establish a legal defence beib-e the jury, and w-w unsuccessful, he cannot, on the same facts, obtain relief in Equity.
    The bill alleged, that administration upon the estate of one Frances Chaves, was roiimsiUed to the Defendant Smith, who gave the Defendant Nailing and one Pope, as sureties for t he due administration thereof-dhat the estate was sold Sty the administrator on the 24th of Feb. A. U, 1785 — tisAt two negroes were then purchased by one Jo/m Dickinson, for .5132 10s, who gave bond to the administrator for the purchase-money, which bore date the 24th of February, A. D. 1785, and was payable six months there* after. That the bond of Dickinson was delivered on the next day lay Smith to Nailing, to indemnify him for his liability on tbc adra ini «traf ion bond, and was endorsed by the obligee. That on the 15th of August, 178 •> before the bond was payable, and while it was held by Nailing, Smith gave Dickinson a receipt, stating it to be in full '.satisfaction of the bond; but which was not surrendered to the obligor. That Dickinson died In April* 1802, and administration of his estate was granted ns November, 1806, to the Plaintiff. That suit was brought on the bond in the fall of 1806, in the name of the, obligee, against tiie Plaintiff, as executor de son tort of Dickinson. That the Plaintiff made the best defence in his power, but a verdict was obtained against him in March, 1808, for the full amount due on the bond. That he offered in evidence the above described receipt, and such other, proof as he had it in his power to command ; but the Court, protected the endorsee, because the presumption created by the endorsement was not, nor could it then be repelled by the Plaintiff’s proof. That after the trial at law, he learnt from one Mills, that no other consideration was given for the endorsement of the bond, than that which has been already stated ; and that Nailing had never suffered in any way by his suretyship, and was not likely to suffer. The bill was filed on the ISih of April, 1808, and prayed for an injunction to restrain proceedings on the judgment at law, and for general relief. At September Term, 1808, “ the injunction was dissolved with costs and on motion of the Plaintiff, the cause was continued, and held over as an original bill.
    
      Ruffin, with whom was Devereux, for the Defendant,
    moved to dismiss the bill, upon the ground that there was complete relief at law, and cited Gatlin v. Kilpatrick (1 Car. Law Repository 534) Fentriss v. Robins (JV*. G. Term Re. 17) Floyd v. ’Jayne (6 John. Ch. Rep. 479) Simpson v. Heart (14 John. Rep. 63.)
    
      Winston, contra.
    
   Toomer, Judge.

— After stating the facts of the case, as above, proceeded' — It is moved to dismiss the bill for want of equity; For the purposes of this motion, the allegations of the Plaintiff are taken to be true ; and no other part of the pleadings is looked into. With this Concession, it is insisted by the Defendants, that the Plaintiff is not entitled to the interference of this Court.

On application for equitable relief, it is not sufficient to show, that injustice has been done. It must also be shown, that the Court will be warranted in exercising its power. Equity does not interfere, on the ground that an uncoiiscienfious verdict has been obtained at law, unless it were not competent to the complaining party, to make his defence in a Court of Law. (Baleman v. Wilcox (1 Scho. & Lef. 201 — 204. Jones v. Jones, N. C. Term Rep. 110). As the allegations of tiie bill are taken to be true, the transaction may be viewed, as if the money due on the bond had been paid by Dickinson to Smith, on the 15th of August, 1785, however improbable it may be, that the payment was then made. The bond had not become payable| it was then in possession of Nailing; no notice of payment given to him ; the surrender of the bond not required by the obligor; the receipt not setting forth what had been received in payment, but simply stating, received in full satisfaction of the bond, &e.” These circumstances are well calculated to excite suspicion that payment bad not beers made; and that some contrivance was designed, to deprive Nailing of the security on which he relied. But these presumptions are all waived. It is now conceded that the bond had been paid ; and it is clearly unconscicntious to enforce payment a second time for the same debt. Can this Court, under these circumstances, interpose to prevent this act of injustice ? Relief cannot be extended, if it were competent to the Plaintiff to make his defence at law.

The action was brought on the bond, in the name of the obligee, against the Plaintiff, as executor lie son tori of the obligor. If payment had been made on the 15th of August, 1785, as is alleged in the bill, that defence would have availed the Plaintiff at law. The suit was brought on a sealed instrument; payment ar the day might have been pleaded, and the receipt, although without seal, could have been given in evidence to support that plea. This principle has been sanctioned by the uniform practice of our Courts of Law. (McDowell v. Tate, ante 1 vol. 251.) I do not know that the correctness of this practice, has ever been questioned in our Courts ; nor was it doubted in tiie. case now under consideration, so far as we can discover from the bill. The right of the obligor to prove by parol, the performance of the conditions, and payment at the dav, and Urns to discharge himself from the obligations of his deed, has not been denied. Tender and refusal are facts, which can only be proved by parol$ and when made on the day, if the money be brought into Court, and the plea of tender and refusal be supported by parol proof, it will defeat the action of the obligee, if the obligation be not for the payment of money, but for the performance of some collateral act, requiring the concurrence of the ob-ligee, and there be an offer by the obligor to perform, and the performance be prevented by the obligee, which are facts only to be proved by parol, such proof will discharge the obligor, although bound by deed. (Mitchell v. Patillo, 2 Hawks 40.) It has also been understood, that the statute of 4 Mnn, ch. 16, sec. IS, which allows the obligor, when sued in debt on a single bill, to plead payment in bar, is in force in this State. This has been tlie uniform understanding of the, profession, and it has governed their practice. But if the old principle of the common law be contended for, that, when the action is brought on a deed, it can only be avoided by matter of as high a nature, as by an acquittance under seal ; and that the statute of 4 Jbm is not in force here; still it is insisted, complete defence could have been made at law, either on file plea of payment at the day, condition performed, or accord and satisfaction. The bi 11 does not state the character of the specialty, but speaks of it as the bond of Dickinson ; from which it is to be inferred, that it was a penal bond, conditioned for the payment of ¿6182 10s. six months after date. Were it a penal bond, the plea of4S payment at the day” would have been good ai common Saw, fot* it is the performance of íbe tson. (St. Germain's Doctor & Stud. 107). i'aymcnt befare the day ce*dd be gíwvi in «H "donee, ard the mo-iit-Y wouM h<* coRordcpcd as n deposit i** tfio bands of Ose obligee, iHI the day of pnymont arrived, when it would, in legal roofomrfoíMW, bo applied. (1 Mod. Rep. 231). Tíu* ¡dea c? cwíTííüu'í pe; formed, venid have answered the like purpose. (Annonymous Croke Eliz. 46.) Had the ob’iew paid meaty nr o'dvi* eqsthn&ert, when the ítv?;v given, uud ií 'sad buen ciec'-utvi by the obli-gee, 1» ful! saiisfaction of dun coneGMoa ef the bond, then the obligor would be protected under the ¡leaof “accord and rp.tis.ísu'ñoa t¡> Tbsf pay meat was inadesml accepted its fall satisfaction, is smivti s«i the bil!. As the condition % os perfumará before the t’-.tj, if leas than the sum due were paid and arcrp.tcd in MI satisfaction, it would be a discharge. I’ecau^e part of Sise debt before Use day, may he more, beneficial to the obligee, than the whole at tl.e day. (Pinnel's case, 5 Rep. 117, a.)

It is not alleged in the bill, that the PTintiff did not make defence r.i law. He. a tors that he ssvde all iiie de-fence in Sus power, and that he gave the original receipt; in evidence, to ¡show that the bom* had been paid by Dickinson. It is not pretended by the Fiaiutiff. that he was met by any technical duflieulfieH, which prevented an investigation of the, case on its merits.

Equity ought not to interfere, when adequate relief might have, been had at law. Were the verdict impro-proper, anew trial could have been granted by the Oonrt of Law. Tiiis appears to be an application to a Court of Equity to grant a new trial, in a cause which had been tried in a Coart of Law, that had ample, power to grant fall relief. Chur's of Equity are not instituted to correct the errors, or revise, the judgments of Courts of Law. (Fentress v. Robins, N. C. Term Rep. 177.) This is an attempt to obtain two trials, in different forums, of tho same que"iros: find, taking a chanca at Law, and then appealing to Equity. There must be some end to litigation. If injustice had been done the Plaintiff at law, he could have appealed, or have procured a cerlio-rarif an(] ¡ia(] the judgment of the Court below revised, by a Court of superior jurisdiction, possessing common law powers, and constituted for the purpose of correcting such errors. (Gatlin v. Kilpatrick, 1 Car. Law Repository, 534.)

The act of the General Assembly, organizing a Court of supreme jurisdiction, was passed in 1799 ; and a Court possessing such powers, has been .since continued. The Plaintiff could have had the alleged errors revised by an appeal to the common law side of this Court, without invoking the exercise of Chancery powers. Relief is not given in Equity, because there lias been an omission to make defence at law. (14 Ves. 31 — 1 Johns. Ch. Rep. 51.)

But there has been no such omission. The defence was made in a Court of competent jurisdiction, and was overruled. This circumstance will not justify the interference of a Court of Equity. (2 Johns. Rep. ch. 557.)

The Plaintiff alleges, that he seeks relief in this Court on the ground of newly discovered evidence ; that he did not know, untii after the trial at law, that the bond had been placed in Nailing's hands, only to indemnify him for his liability, as surety of the obligee, and was endorsed to him without any other consideration. It is to be inferred from this allegation, that the obligor knew, at the time he procured the receipt from the obligee, that Nailing held the bond. Ignorance of this fact is not pretended, and certainly the obligee not having possession of the bond, was sufficient to put the obligor on inquiry, and to prevent his paying it, until he could obtain its surrender. It is not intimated that the obligee concealed from the obligor, at the time of the alleged payment, that Nailing had possession of the bond ; and it must be inferred from the circumstances, that the ob-ligor well knew, or had very good reasou to believe, Nailhig claimed some interest in the bond. Why then did the obligor make payment to the, obligee ? Were it with any design to defeat Nailing’s claim, the Plaintiff, who represents the obligor, comes with ill grace into this Court. It is not alleged, that any artifices were resorted to, either by Nailing, or the, obligee, to deceive the obligor. To view the transaction most charitably, it was an act of gross negligence, or extreme folly, on the part of the obligor, which gives him no claim to the interposition of this Court.

The Plaintiff sets forth no reason, why he could not have discovered this new matter, by the exercise of ordinary diligence, as well before, as after the trial at law. But the discovery of this evidence, and its exhibition on the trial, could have been no defence for the Plaintiff. The jury, by giving a verdict for the obligee, must have come to the conclusion, that payment had not been made, and that there had been no accord or satisfaction 5 which conclusion must have been founded on the belief, that the receipt was spurious, and not the act of the ob-ligee. The Plaintiff could have gained nothing by showing, that the obligee had the beneficial, as well as the Se-gal interest in the bond.

The endorsement of the bond to Nailing, was only the assignment of a chose in action, which vested in him no legal rights, and his interest would not be noticed in a Court of Law. The assignment was amide in February, 1785. The act making bonds for the payment of money negotiable in this State, was not passed until December, 1786. A bond, not negotiable at the time of its execution, does not become so by subsequent occurrences. (1 Hay. Rep. 372, 398.) The act of 1786, liad no retrospective operation ; it did not embrace bonds made before its enaction. Suits on such bonds must fee brought in the name of the obligee; the assignment could not cloth» the assignee with any Segal rights. (Wilkinson v. Wright Conf. Rep. 342.) Onr Courts of Law only consider k-gal rights. (Jones & Wife v. Mackledge, 2 Carolina, Law Repos. 457.)

Tlie action was brought in the naiM of the obligee 5 ¿|ie irga¡ right was clearly in him. Osi the plea, that the bond had been paid at the day, or om the plea of accord and satisfaction, made and accepted by the obligee, the question could, not arise in a Convt of Law, whether the assignment had been made with or without consideration. If any question of fraud had incidentally arisen on the trial, that Court was competent to its decision.— It was not necessary to the defence of the Plaintiff, to show that the bond had been assigned without consideration. That Court would not inquire, who was beneficially interested in the suit, but would look only to the legal rights of the Plaintiff in the action. It is said, the Court protected the assignee, on the ground that the assignment was evidence of its having been made for valuable consideration. If the Court of Law, which tried the cause, inquired into the equitable rights of the as-signee, and deemed such an inquiry material to the issues joined, it is believed to be a mistake, and it carried the Court “ out of the record.” And such error gives the Plaintiff no title to the interference of a Court of Equity. He could have moved for a new trial, or he could have had the error corrected, by the adjudication of a Court of appellate jurisdiction, possessing common law powers. No Court aspires to infallibility, or claims exemption from error. Human institutions partake of human imperfection. Perfect justice is not to be expected from imperfect tribunals.

The. bill must be dismissed; each party paying his own costs.

Hall, Judge.

— I suppose it was competent for Pence to pray a discovery from Nailing, whether he had any interest in the obligation on which suit was brought. But that mode of defence having been resorted to, and turning out fruitless, the, bill ought to have been dfo. missed, aud not held over us an origina!, as was too often permitted to he done by Courts of Equity at the time thin was filed.

By holding the b:!I over and taking V'timonY, it was intended to examine a second the name subject, which had b"en examined and disposed -d in the Court of Law- — *o have a new t; i.;!-••• wb.-n the Plaint,h ic«d no equitable titaMer in his bill, which entitled him to it. For that purpose testimony has been taken by b ¡ih parties, and the suit has remained upon the docket tw >,i(> years. I have examined the testimony. not for'ike pulposo of ascertaining whether tho bill should be dismissed or not, (for Í think it ought to bo dismissed, independently of any testimony,) but to ascertain how ihe coats should be disposed of, and as far as i can discover, the merits of neither party entitle them to costa. Nothing but the endorsement on the note, and Nailing’s answer, show that he had any interest in the note j indeed there is reason to believe the contrary. On the other hand, whether be liad any real interest in the note or not, Dickinson knew' that the note, was assigned to him,, before he paid the money to Smith,

For U<ese reasons, I think neither parly entitled to costs, but that each should pay their own. I suppose the suiPs remaining on the docket so long, was o wing to a common error.

Per Curiam.

-Let the bill he dismissed without costs.  