
    Spotswood v. Higgenbotham.
    Decided, March, 10th, 1819.
    i. Equitable Relief — Appearance Ball — Failure to Plead Non Est Factum. — A person returned as appearance bail, who denies that he ever executed the bail bond, is not precluded from obtaining- relief in equity, by his failing to appear and plead non est factum at law, after being informed that his nam e was subscribed to such bond; for if, in fact, he did not execute the bond, he had regularly no day in Court, and was therefore not hound, to take any step for his relief in the action at common law.
    3. Same — Remedy at Law Doubtful —In a case where the remedy at law was considered doubtful when the party applied to a Court of Equity, it would he too strict to deny him admittance into that Court for relief.
    3, Ball Bond — Injunction—Parties Defendant. — The officer who returned the writ and bail bond, ought, as well as the plaintiff at law, to he made a party defendant to a Bill of Injunction filed by the person returned as hail, who denies that he ever executed the bond; for the officer is interested in the question in controversy, and should be a party, that final and complete justice may he done.
    4. Same — Same—Decree.- -In such case, in the same suit in Chancery, a decree may he rendered in favour of the plaintiff at law, (though defendant inequity.) against such officer, if justice should require it.
    In a suit at law brought by Daniel Hig-genbotham against Robert Spotswood in the Superior Court of law for the County of Prince George, the Serjeant of the town of Petersburg returned the writ executed, and Norborne B. Spotswood bail for the defendant’s appearance; whereupon, an office judgment being entered and confirmed, against the defendant, and the said Norborne as his bail, the latter filed'a Bill in the Superior Court of Chancery for the Richmond District, for an Injunction; averring, that he never was the bail, and never saw the bail-bond until after judgment was rendered upon it.
    Higgenbotham, in his answer, stated that, from information received from others, he believed, and hoped to prove, that the Complainant knew, long before the Judgment, and probably before the first rule day, that his name was subscribed to the bail-bond; that, therefore, since he might have defended himself at law, he was not entitled to relief in equity. The respondent further observed, *that if any doubt existed whether Norborne B. Spotswood signed the bail-bond, or not, (unless, for want of pleading non est fac-tum, he be estopped in equity,) it should be tried by a Jurj', because if he is not bail, a Judgment should be rendered against the officer for failing to take bail.
    It was now proved by affidavits, that the Complainant, before the confirmation of the office Judgment, was informed that his name was subscribed to the bail-bond; but it was not alledged in the answer, nor proved, that he actually executed, or acknowledged the same to be his deed.
    Chancellor Taylor dissolved the Injunction ; from which order an appeal was allowed by a Judge of this Court.
    May for the appellant.
    Upshur for the appellee.
    
      
      Equitable Jurisdiction — Remedy at Law Doubtful,— When it is doubtful whether or not there is an adequate remedy at law, a court of equity will take jurisdiction. Nease v. Ins. Co., 32 W. Va. 286, 9 S. E. Rep. 235. See further, monographic note on “Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
    
   The Court’s opinion was delivered by

JUDGE ROANE,

as follows:

The Court is of opinion, that as, on the hypothesis that the appellant did not execute the bond in question, he had regularly no day in Court in the action at common law, and was, therefore, not bound to take any steps for his relief in the said action; and, as, also, in this case of the remedy at law being considered doubtful, it would be too strict to deny him admittance for relief into a Court of Equity, the decree dissolving the Injunction is erroneous.

The opinion of the Court further is, that, as the appellee is probably entitled to his .money either from the appellant or from the Serjeant, who is therefore much interested in the question now in controversy in this case; and as the appellee has been deprived of his remedy by office judgment against’the said Serjeant, by the rendition of the judgment now injoined, the interposition of this Court is necessary to give him relief; the *Court is therefore of opinion that the said Serjeant ought, to be made a party to the suit, in order to final and complete justice between the parties.

The Decree is therefore reversed with costs, the injunction re-instated, and the cause remanded, to be proceeded in according to the principles of this decree. 
      
       Note. See ante, the last case, In 'which the Judge of the Superior Court was of opinion that the person returned as appearance bail, could not plead non est factum. — Note in Original Edition.
     