
    *Penn & al. v. Reynolds.
    June Term, 1873,
    Wytheville.
    Absent, Staples, J.
    
    Judgment — Defended at Law — No Relief in Equity.— In an action of debt upon two bonds executed on the 29th of December 1862 and payable twelve months after date, the defendants appeared and defended the action; and the jury scaled the debt, reducing; it from $5,193 to $3,000, with interest from the day the bonds fell dne; and the judgment was accordingly. About a year after the judgment was rendered, the defendants in the action filed their bill for an injunction to the judgment, on the ground that the debt was scaled as of its date, instead of the day of its payment. Held: The defendants having defended themselves at law, cannot afterwards come into equity for relief.
    This is an appeal from a decree of the Circuit court of Patrick county, dissolving an injunction which had been awarded to the judgment of the said court. The material facts of the case are as follows: In December, 1862, the appellants, Thomas H. Penn and Jackson Penn purchased of the appellee, Fleming Reynolds, commissioner for the estate of Flinder W, Reynolds, dec’d, a tract of land in said county, containing about 325 acres, at the price of $30 25, and a slave named Mary, at the price of $2,168; for each of which two sums of money they executed a bond bearing date on the 29th day of December 1862, and payable twelve months after date, in current money. On the 6th day of January 1864, eight days after the bonds became payable, a tender of *the amount of them, including interest, in Confederate money, was made by the debtors to the creditor, who refused to receive the same, because it was Confederate money. In February 1867, he brought an action at law against them upon the said two. bonds, in the said court. On the 12th day of April 1867 the defendants plead payment, on which plea issue was forthwith joined, and leave was given them to file a .special plea within sixtj” days. No such plea was filed within sixty days; nor does it appear that any other order was made in the case, until the 17th day of April 1868, when the cause was tried. On. that day the defendants filed a demurrer to the declaration, which was overruled; whereupon the defendants asked leave to file two special pleas in writing numbered 1 and 2; to the filing of which the plaintiff objected, and the court sustained the objection, and rejected the pleas. They were, in subtsance, as follows: Special plea No. 1, averred that the writing obligatory for the sum of $2,168 was executed for and in consideration of the purchase of a slave, and for no other consideration whatever ; and that before the said writing became due and payable, or a short time, thereafter, the title of the plaintiff to said slave had entirely failed; by reason whereof the defendants had been damaged to the amount of $2,168, which they prayed might be enquired of, and offset against the plaintiff’s demand. Special plea No. 2, averred that on the 29th day of December 1863, (the day on which said bonds becaame due and payable,) the defendants tendered and offered to pay to the said plaintiff the said sum of money in said declaration mentioned, to receive which of said defendants, said plaintiff then and there wholly refused; that they have always from that time been, and still are, ready to pay to the said plaintiff the said sum of money in current money, as of the 29th day of December 1863; *and that they then, to wit: at the time of offering such plea, brought the said sum into the said court, ready to be paid to the said plaintiff if he would accept the same. The said special pleas being rejected, as aforesaid, there was thereupon a trial by jury of the issue joined on the plea of payment, when the jury found for the plaintiff the debt in the declaration mentioned; and further found, “that the same was contracted in relation to Confederate treasury notes as a standard of value, and that the true value of the same in lawful money is $3,000. ” They therefore found “for the plaintiff the said sum of $3,000, with interest from the 29th day of December 1863;” and judgment was rendered accordingly.
    On the 7th day of July 1869, more than a year after the rendition of said judgment, the defendants filed a bill of injunction to the same in the said court, (having a few days previously obtained an order from the Judge of said court in vacation awarding such injunction,) in which, after referring to and stating the facts in regard to the said contract of purchase and the execution of the said bonds, they aver “that said debts were contracted in reference to Confederate States Treasury notes as the standard of value.” They then allege that on or about the 1st day of January 1864, and within 3 or 4 days next after said bonds fell due, they tendered to the plaintiff, in payment of the same, the sum of $5,196 49 in Confederate States Treasury notes, that sum being the amount of principal and interest then due on said bonds; that said plaintiff refused to accept the amount thus tendered him, alleging as a reason therefor, and the only reason, that he did not want Confederate money; and that between the maturity of the bonds and the date of said tender, there had been no substantial, or in fact any, depreciation in said currency.
    They set out, as a part of their bill, a copy of the record of *the action at law upon the said bonds; after which they “represent, that had the debt been scaled to its true value as of the maturity of the bonds, as by law and the decisions of the Supreme court of Appeals of the State should have been done, the judgment should have been for $-, and interest only, instead of the sum of $3,000,” which they say was the effect of scaling the debt “as of the date of the contract. ” They charge that the Stay Law will soon expire by its limitation, and that said Reynolds is threatening to sue out execution on his judgment at law; and they therefore pray, that he be enjoined from all further proceedings on said judgment, and for general relief.
    On the 14th day of April 1870 the said Reynolds filed his answer, in which he demurred to the bill for want of equity ; stated that the whole matter in controversy had been fairly and properly tried in the action at law, and verdict and judgment rendered therein accordingly; that the complainants had been in the possession and enjoyment of the said land ever since the purchase thereof, and of the said slave until she was emancipated in consequence of the war; that a court of equity had no right to interfere with the said judgment, on the ground of fraud, accident or mistake, or any other ground; and that the only redress to which the complainants were entitled for any error in the judgment was by an appeal from the same; but that there was in fact no error in said judgment, at least to their prejudice.
    Many depositions were taken and filed in the cause bjT both parties, relating chiefly to the questions, whether the sale was for Confederate money or not, and what was the value in good money of the said land and slave at the time of the sale. There is much conflict in the testimony on both of these questions; the value of the land, according to the witnesses, varying between about $800 and $3,000. Several of the jurors who tried the *action at law were examined; one of whom said, the jury decided upon the proof of the value of the property before the war and at the time of rendering the verdict; that they valued the slave at $1,000 and the land at $2,000, and accordingly rendered their verdict for $3,000, which from the evidence they believed the property to be worth. One of the witnesses proved, that on the 6th day of January 1864, a tender was made of the amount of both bonds, in Confederate money, to the creditor, who refused to take the same; saying the legatees were not willing to receive it. He did not object to taking the money because it was not the proper amount, but because it was Confederate money.
    On the 15th day of April 1870, the cause came on to be heard upon a motion to dissolve the injunction, and the same was accordingly dissolved; and there was a decree against the complainants for costs and damages. Prom that decree they applied for and obtained this appeal to this court.
    Jno. A. Campbell, for the appellants.
    I. The decree of the court below declares that there is “no equity in the bill.” This is manifestly erroneous. The bill -was filed under 1 4, ch. 71, p. 185-6, acts of 1865-66, and is strictly within the letter of the statute. Unless, therefore, the statute is unconstitutional — a proposition which it is not proposed to argue — the appellants were ■properly in court, as they could only avail themselves of their tender in a court of equity.
    II. The contracts were for Confederate money. Vide Walker’s ex’or v. Page et als., 21 Graft. 636; and the tender of Confederate money, was a good tender; and but for the act of assembly the depreciation, subsequent to the tender, would have fallen upon the appellee. Vide 9 Bac. Ab. Tender B. p. 317.
    Upon the whole case the decree is erroneous. Because the rights of the parties have not been ascertained by either of the two modes for adjusting Confederate contracts. Vide Pharris v. Dice, 21 Graft. 303.
    1. The sum recovered greatly exceeds the gold value of the amount contracted to be paid.
    2. It is not the value of the property sold.
    Eybrook, for the appellee.
    
      
      Judge Staples .was related to some of the parties.
    
    
      
       Relief at Law and in Equity. — In both Knott v. Seamands, 25 W. Va. 104, and Bias v. Vickers, 27 W. Va. 462, the principal case is cited along with Sanders v. Branson, 22 Gratt. 364, as .authority for the proposition that when a statute gives a right to the defendant to defend at law or obtain relief in equity, if he avails himself of his right to make his defense at law and judgment is given against him, he cannot afterwards obtain relief upon the same grounds in, equity. See also, Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. Rep. 575, 7 Enc. of Pl. & Pr., p. 810.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case, he proceeded :

If the debtors had not made their defence in the action at law against them upon their bonds, in pursuance of sections 1 and 2 of the acts passed March 3, 1866, (acts of 1865-6, p. 184,) and February 28, 1867, (acts of 1866-7, p. 694,) commonly called the adjustment acts, they might still have applied to a court of equity for relief, under the 4th section of the said act passed March 3, 1866, according to the case of Sanders v. Branson, 22 Gratt. 364. But whatever may-have been the measure of the relief to which they would have been entitled in a court of equity, under the said 4th section, a question which it is not necessary now to decide, they were entitled only to an election between the two remedies, and certainly had not a right to resort to both. They availed themselves of their legal remedy, by making their defence in the action at law upon the bonds. Afad the jury sustained their defence, by reducing the demand against them from its nominal amount of $5,193, to the sum of $3,000 in good money; for which latter sum, with interest from the 29th day of December 1863, they rendered a verdict; and judgment was given accordingly. If they were dissatisfied with the relief they obtained in the court of law, they ought to have appealed *from the judgment of that court. Instead of doing so, they did not even except to any opinion given by the. court in that action. When the stay law was about to expire, and the debtors apprehended that an execution would be issued against them upon the judgment, they applied to a court of equity for relief, under the 4th section of the act of March 3, 1866, and obtained an injunction to the judgment. In other words, having been once relieved in a court of law, they applied to be relieved again in a court of equity — that is, for double relief. We think they had no right to such relief in a court of equity. They only complain in their bill, that in the action at law, the debt was scaled to its true value, as of the date of the bonds, and not as of the time of their maturity, as, they say, should have been done, “by law and the decisions of the Supreme court of appeals of the State. ’ ’ Now, it appears from the evidence in the cause, that the debt was not, in fact, scaled to its true value as of the date of the bonds; but the jury thought, that under all the circumstances, the fair value of the property sold, would be the most just measure of recovery in the action; and therefore adopted that principle as the measure of the recovery, in pursuance of the proviso contained in the first section of the said act of February 28, 1867. But whatever, and however erroneous, the principle adopted by the jury may have been, the judgment in the action at law cannot be questioned in this collateral way, but is conclusive until reversed by an appellate court.

We are of opinion that the said injunction was properly dissolved, and that there is no error in the decree of the Circuit court.

Decree affirmed.  