
    *Terrell v. Dick.
    [Tuesday, April 16, 1799.]
    Equity Jurisdiction — Relief.—After a cause has been once fully decided, by a Court of Common Law, Equity will not grant relief.
    
      The bill stated, that Alexander M’Cauly, George Brackenridge, Harden Burnley and George Pottie, were merchants under the firm of Alexander M’Cauly & Co., and that they all lived in the counties of Hanover and Louisa. That on the 13th of August, 1778, Pottie, at the request and solicitation of Richard Terrell and Frederick Harris, lent them 5001. of the then current money of Virginia, belonging to the company. That Terrell and Harris expressly undertook and bound themselves to pay the same, with interest, to the firm. That the company brought suit, in the County Court of Louisa, on the writing obligatory, and at the trial the defendants (having great influence in the said county) “prevailed upon the jury who tried the cause, under the pretence that it was a British debt to find a verdict for the defendants, without pretending that any part thereof had been paid” to the plaintiffs: “By which means (the bill stated) the plaintiffs were most unjustly deprived of their money.” That M’Cauly, Brackenridge and Burnley, considered themselves as citizens of this State. That Pottie never was a British subject, but always was a citizen of this Commonwealth. Therefore, the bill prayed relief, and that the defendants might be decreed to pay the money lent, and interest, together with the costs at Common Law. The defendants plead the judgment at law, in bar to the suit: and demurred to the jurisdiction of the Court.
    The Court of Chancery over-ruled the demurrer, and saved the benefit of the plea to the defendants at the hearing; directing, that it should stand partly for an answer; and ordered the defendants to answer the allegations of the bill.
    *There was an answer accordingly put in, which stated that, on the 13th of August, 1778, the defendant borrowed 5001. paper money of the plaintiffs, through their factor, to be re-paid in 12 months. That, at the end of the said 12 months, the factor of the plaintiffs agreed to receive it within a day or two; and, on the succeeding day, that the defendant offered the money, and interest, to the factor, who refused to receive it. That in consequence of this, the defendant, not knowing to whom else to pay it, was referred by the factor to Pottie, who had the bond. Whereupon, the defendant offered the money and interest to him also; but he, likewise, refused to receive it. That the money was not lent, as a favor to the defendant, but for the benefit of the firm. That M’Cauly, Brackenridge and Burnley, were here before the Revolution; but, after the commencement of hostilities, withdrew and lived under the British government; and, therefore, the defendant does not know how they became citizens, nor does he believe they were. He admits, however, that M’Cauly lived here, when the suit in the County Court was commenced; and, denying the influence charged in the bill, states that, upon a fair trial, there was a verdict for the defendants, on a plea that it was a British debt, upon which a judgment was accordingly rendered. To this answer there was a general replication, but no testimony or exhibit appears in the cause.
    The Court of Chancery decreed, that the defendants should pay to the plaintiffs 1001., the value of the 5001. by the scale, with interest from the 13th of August, 1778. Prom which decree, the defendants appealed to this Court.
    Call, for the appellants.
    There having been a full trial at law, without any surprise or any new fact suggested, it was a complete bar to the present suit. The influence stated in the bill is denied, and no evidence in support of it is. offered.
    The plaintiffs should have moved for a new trial, or suffered a non-suit; but, failing to do so, they must now be taken 548 to have submitted to the' judgment ; and cannot be received to impeach it here. Tarpley’s admr. v. Dobyns, 1 Wash. 185.
    Wickham, for the appellee.
    Although the English books may appear to countenance the argument of the appellant’s counsel, yet a different rule has certainly obtained here; and properly, too, when the difference between the systems of jurisprudence in the two countries is considered. In England, the trial is always had under the direction of able Judges, who can explain the law fully to the jury; but here it is, for the most part, before County Courts, who are not acquainted with the law; and, therefore, the judgment is frequently contrary to plain principles of law. All the points made by the appellant’s, counsel, with all the learning on them, were fully considered and digested in this Court, in the case of Floyd v. Barret, [post, 3 vol. 531,] in which the Court decided, that the Court of Chancery might relieve, notwithstanding the whole merits had been discussed and decided on in the Court of Common Law. Branch v. Burnley, ante, [147] was also a case of the same kind; for, in that, the whole matters stated in the Chancery were spread upon the record at law, and yet the Court gave relief, although the plaintiff in Equity might have had redress by an appeal. Indeed, the precedents of that kind in this Court are very numerous, Picket v. Morris, 2 Wash. [255,] and Ambler v. Wyld, 2 Wash. [36,] with several others, confirm the general doctrine. It is not denied, that the debt is still justly due; and the answer has confessed the allegations of the bill; after which, it is too late to except to the jurisdiction, as has been often decided. There can be no magic in the words ‘new trial,’ and, of course, there was no necessity for pursuing that mode. At the time of the judgment, in the County Court, it had not been settled, that British debts were recoverable.
    Call, in reply.
    In all the cases cited, there were new circumstances ; and none of them were like the present, in which there is no suggestion of any additional fact. As to the ad-549 mission in the ^answer, it is doubtful whether any case has carried the doctrine so far, as the appellee’s counsel contended for, even in the case of a voluntary admission. But, if it has, the argument will not hold in this case; because, the plea and demurrer have been disregarded by the Court of Chancery, and the defendants compelled to answer.
    
      
      Equity Jurisdiction — Relief.—Where a cause has been once fully beard and decided in a court of common law, having competent jurisdiction of the case, a court of equity ought not to interfere, unless fraud or surprise be suggested and proved, or some material adventitious circumstance had arisen, which could not havé been foreseen, or guarded against. Fenwick v. McMurdo, 2 Munf. 253, citing the principal case; Turpin v. Thomas, 2 Hen. & M. 139; Morris v. Boss, 2 Hen. & M. 408; Syme v. Montague, 4 Hen. & M. 180; De Lima v. Glassell, 4 Hen. & M. 369. In this connection, the principal case is cited with approval in Turpin v. Thomas, 2 Hen. & M. 146; Morris v. Boss, 2 Hen. & M. 412; Alderson v. Biggars. 4 Hen. & M. 472; Mason v. Peter, 1 Munf. 445; Meredith v. Benning, 1 Hen. & M. 596; Lipscomb v. Littlepage, 1 Hen. & M. 461; West v. Logwood, 6 Munf. 496; Tomkies v. Downman, 6 Munf. 568; Bierne v. Mann, 5 Leigh 369; Collins v. Jones, 6 Call 531; Goddin v. Bland, 87 Va. 709, 13 S. E. Rep. 145; Grafton & G. R. Co. v. Davisson. 45 W. Va. 14, 29 S. E. Rep. 1029; Pollard v. Patterson, 3 Hen. & M. 79. The principal case is distinguished in Turpin v. Thomas, 2 Hen. & M. 145; and in West v. Logwood, 6 Munf. 499 et sea., the principal case is discussed and reconciled with the decision in Price v. Fuqua, 4 Munf. 68. and the decisions subsequent to it.
      The principal case Is cited in Turpin v. Thomas, 2 Hen. & M. 148, for the proposition that, a court of equity will not interfere in a case purely of a legal nature, on the ground that the judgment at law was erroneous, where neither fraud nor surprise are suggested, nor any adventitious circumstance had arisen.
      The principal case, and Turpin v. Thomas, 2 Hen. & M. 139, are cited in Nicolson v. Hancock, 4 Hen. & M. 494, as authorities for the proposition that, the errors of a competent tribunal at law, which can or might have been corrected there, affords no ground for relief in equity; but they must be corrected by a superior court in the mode pointed out by law.
      If a party prosecute his action at law, and there be a decision of an inferior court against him, from which he takes an appeal, but does not prosecute it, he cannot come into equity for relief, on the same subject-matter. Saunders y. Marshall, 4 Hen. &M. 455. 458, citing, as authority, the principal case.
    
   ROANE, Judge.

This was a bill praying to be relieved against a verdict and judgment for the appellant, and to have a new trial granted, or that he should be decreed to pay the monej' due upon the bond, on which the suit at law was founded, in due proportions.

The case made by the record of Louisa Court, (which I understand to be introduced into the cause by consent) is', that of an action of debt upon a bond, and a verdict and judgment for the defendant upon an issue joined'-upon the plea of British debt'. After the verdict, a motion was made for a new trial; but it was over-ruled in consequence of an equal division of the Court. The additional case made by the bill in Chancery is, that the verdict was obtained by the undue influence of the appellee. But, this is denied bj' the answer, and is not proved by the appellant. So, that it may be thrown entirely out of the case, which may be considered to be as naked as I have stated it.

On a demurrer to the jurisdiction of the Court of Chancery, and a plea of the above judgment in bar, the Court over-ruled the demurrer, and, at the hearing, decreed the present appellant to pay the money.

If the jurisdiction of the Court of Chancery was sustainable, it must be on the ground either of the judgment of the County Court being erroneous in point of law, or of some extrinsic circumstance affecting the fairness of the trial, or at least some circumstance varying the case from that which was decided upon by the Court of Law.

*As to the first, T consider that there is no question more completely and exclusively proper for the decision of a Court of Law, than the one whether British debts were recoverable or not, under the laws of the Commonwealth? And, if an erroneous judgment has been given by a subordinate Court upon the subject, it could properly be corrected by an appellate Court of Law, and by that only. In order to save time, I beg leave to refer, in support of this opinion, to the observations I used upon this point, in the case of Branch v. Burnley ; and to remark, that upon mature reflection since, I have not seen cause to change my opinion upon the subject. Nor do I believe that there is a single decision of this Court, or of the Courts in England, which will justify the interference of a Court of Equity, in a case purely of a legal nature, merely on the ground that the judgment of the Court of Law was erroneous. In Branch v. Burnley, I understood the doctrine to have been admitted by the Court; but the jurisdiction there was sustained on the ground, as a majority of the Court supposed, of the case presented to the Chancery being, as relative to that before the Court of Law, a new case; on account of the circumstances exhibited in the suit in equity, which made no part of the case at law. In Picket v. Morris, I understood the jurisdiction was sustained on the ground of improper conduct in the Court of Law; and of one of the parties diverting the other from persevering in an application for a new trial, (the proper channel for obtaining redress,) by giving him time to apply for an injunction; and then unconscientiously opposing him on the ground of jurisdiction. At least, these were the grounds on which my opinion was founded. In Ambler v. Wyld, I understand the 'relief to have been given on the ground of the trial not being fair and equal, and of some of the evidence having been rejected, without reason. 2 Wash. 41.

Therefore, without adverting to other cases, I believe I am warranted in 551 saying, that no ^decision has taken place, of the interference of a Court of Equity, in a question purely legal, and where the case was precisely the same as that decided on by the Court of Law, on the ground that the decision of the Court of Law was erroneous.

2dly. Are there any extrinsic circumstances in the case, such as existed in the cases just mentioned, tending to impeach the fairness of the verdict and judgment, as to the manner of obtaining them? None such are pretended.

And as I cannot, sitting as a Chancellor in the present case, (although my opinion may be that the County Court erred in point of law, in giving the judgment in question,) undertake so to decide for want of jurisdiction in the cause, so neither can I say, that in point of fact the jury were mistaken; especially as their opinion has been corroborated by that of a moiety of the Court refusing a new trial. Nor can we say, that any act of unfairness existed in conducting the trial. We cannot make the appellee’s case better, than he himself has made it.

Upon the whole, I do not see any ground for the interference of a Court of Equity. Otherwise, I do not discover that we can disclaim cognizance of any case whatever, which the party may chuse to bring before the Chancellor, after it has been determined in a Court of Law.

I am, therefore, for reversing the decree, because the demurrer ought to have been allowed.

ELEMING, Judge. Declined giving any opinion.

CARRINGTON, Judge. If there had been any circumstances to vary the case in equity from what it was at law, I should have been willing to have afforded the plaintiff an opportunity of having his case re-considered, as was done in the cases of Ambler v. Wyld, Picket v. Morris, and Branch v. Burnley. But there are none. Eor, no new fact or other matter ap552 pears to give the Court of ^Chancery jurisdiction, and to be the foundation for relief in equity; since the influence is denied; and that was the only one alleged. It is, then, precisely the same case now, (without any addition,) that it was in the County Court: And, therefore, whether the judgment was right or wrong, it must prevail.

The consequence is, that the application to a Court of Equity cannot be maintained; and, therefore, I think the decree must be reversed, and the bill dismissed.

PENDLETON, President. The prayer of the bill,is, that the verdict and judgment should be set aside, and a new trial awarded; or, that there should be a decree for principal and interest.

The Chancellor has chosen the latter alternative, in which I differ in opinion; since the matter being originally triable at law by a jury, it seems to me improper to change the mode of trial by a final decree; and that to award a new trial, is as far, as Courts of Equity have gone on these occasions.

The ground, upon which a Court of Equity interposes, is this:-

New trials at law can only be granted by the Court who sit on the trial; since, none others can judge of the reasons on which they are founded; and because, when judgment is entered, that Court have no more power over the cause, and a Superior Court cannot award a new trial, unless the reasons appear in the record: at all times difficult, and utterly impossible, where they arise from something discovered afterwards.

An unjust judgment must, therefore, stand against the parties, or a Court of Equity must interpose its aid, and supply the defect consequent upon legal forms. In this situation, no one can doubt which alternative ought to prevail.

*The nature of our County Courts furnishes additional reasons in support of this Chancery jurisdiction ; which has, accordingly, been sustained by the opinion of this Court, in several instances, where sufficient reasons have appeared for awarding the new trial.

Those reasons are many:

Accident or surprise, by which a party is deprived of a fair trial, tampering with a jury or witnesses, or other unfair practices ; the finding excessive damages, or against evidence, and many others: the precedents for which are numerous. Thus, for instance, in Ross v. Pynes, [Wythe’s R. 71,] a witness was sick and absent; but this circumstance was not known at the time of the trial: In Ambler v. Wyld, the Court at law refused to admit evidence, which appeared in equity to be material: In Cochran v. Street, [1 Wash. 79,] the verdict was given upon a mistake in the jury: and in Lee v. Foushee, the verdict was given late in the evening, and a motion for a new trial made next morning; which could not be heard, because the members of the Court were changed; and, therefore, equity awarded a new trial.

In the present case, none of the reasons appear. The plaintiffs suggest none other, than the influence of the defendants, and a general prejudice against British merchants. The defendant says he was not conscious of that influence, and that the trial was fair.

A motion was made for a new trial, and the Court divided in opinion. No reasons appear in the record, nor in the proof. It only can be presumed, therefore, that the motion was founded on what was within the knowledge of the Court to decide; that is, that the verdict was against evidence.

This was matter of opinion; and although at law the consequence was unavoidable, that the negative must prevail; yet, since in -fact it was equal, whether it was or was not against evidence, it is worthy of consideration, whether the consequent 554 ^'convenience or inconvenience ought not in equity to turn the scale.

On one -side, is a creditor who may be barred by the mistake of the jury and |)art of the Court. On the other, the trial is to be at the costs of the plaintiff. If justice is with the defendant, he will, no doubt, prevail on the second trial; and this trouble will be the only inconvenience. On this ground, I suppose it is, that liberality in granting new trials is practised, in both Courts of Law and Equity. There is another circumstance which, perhaps, may deserve weight. It appears to me, that the issue tried was an immaterial one; that a repleader should have been entered instead of a final judgment; and that on an appeal, it would have been reversed.

But, whilst he has been prosecuting this suit, his time has elapsed, and the door for that remedy shut by the act of Assembly. The question, therefore, is, whether the Court will relieve him on account of his mistake in that respect? I have given the case the strongest view in which my mind could place it, from a wish to support the Chancery jurisdiction, and to avoid the possible risque of a creditor’s losing a just debt, from a mistake in legal proceedings.

But, the result of mature consideration is, an opinion that we cannot sustain the jurisdiction in this case, without fixing a dangerous precedent, wholly destructive of all distinction in the Common Law and Chancery jurisdiction ; and that, whatever injury may arise to the party, it has proceeded from his own neglect: 1st. In taking issue upon, and not demurring to, the immaterial plea. 2d. In not applying to a Superior Court of Law to correct the error, in entering judgment for the defendant, instead of awarding a repleader. 3d. In not stating on the record at law, or proving to the Court of Equity, any reasons on which his application for a new trial in either Court was founded.

*1, therefore, concur with the two Judges in opinion, that the decree should be reversed, and the bill dismissed with costs. _  