
    Tarpley’s Administrator v. Dobyns.
    April Term, 1793.
    Siis-prise — When* Equity Will Not Relieve.- The plain-tiii went to trial at ] jaw in a case where he might have sued in Kquity, and a verdict hy surprise was given against him. lie shall not afterwards resort to a Court of Chancery.
    This was a suit in Equity, instituted in the County Court of Richmond, by the present appellant. The bill charges, that there were various specie dealings, between the intestate of the plaintiff, and the defendant; and that upon a settlement made in 1779, there being a balance found due from the defendant, he executed a bond for 7(54 current money, the amount thereof. That this was understood by the parties, to be a specie debt, and as a proof, that such was the meaning of the parties, the defendant, afterwards paid £6: 10, in specie, and still acknowledged himself further indebted to the plaintiff’s intestate; which could not have been the case, if the debt had been subject to the legal scale of depreciation, which in 1779, was 10 for one. That the plaintiff, instituted a suit at law, against the defendant, and not suspecting that the defendant would attempt to contend, that the debt should be scaled, he was unprepared to prove the defendant’s declarations, tending to shew, that he considered it as a specie debt. — In consequence whereof, the jury reduced the debt, to a smaller sum, than the defendant had actually paid, ‘"'and found a verdict against the plaintiff. The bill prays, that the defendant may be decreed to pay the ^54, in specie with interest, after deducting the above payments.
    To this bill, the defendant demurred for want of equity. The demurrer being sustained in the County Court, as also in the High Court of Chancery where it was carried by appeal, the plaintiff below appealed to this court.
    The cause, being argued here by Mr. Campbell for the appellant;
    
      
      Eqiiity Practice-Surprise. — For tile proposition that, where the plaintiff goes to trial at law in a case where he might have sued in equity and a verdict hy surprise is given against him, he shall not afterwards resort to a court of chancery, the principal case is cited and approved in Harvey v. Fox, 5 Leigh 449: Oswald v. Tyler, 4 Rand. 33, 46, 47, 50.
      See also, Terrell v. Dick, 1 Call 546, and foot-note.
      
    
   The PRESIDENT

delivered the opinion of the court.

We feel no difficulty in declaring, that both decrees are right. Although the appellant might have resorted to a Court of Equity in the first instance, if his case would bear it, it is now too late, after having made his election, to take a trial at law. As to the surprise, which is made the pretext for this application to a Court of Equity it ought not to benefit the appellant in the present case; since, when he discovered a disposition in the appellee, to avail himself of his legal advantage at the trial, he might have suffered a nonsuit.

Decree affirmed.  