
    Contee vs. Cooke.
    , On a bill in chan» ci ry to be relieved • ag'iuubt a verdict and judgment, it apptaml that the application m effeet was, that the ■chancellor act as a tribunal of appeal from the verdict* Tilt re was stated do surprise on the compui.naic whilst detendant at. ia\v; do disco\ evy of tes» timony -inee tin? tiiaijiuul no sail)-' cient proof of fraud. Decreed tfiat the facts, set ‘ ionh m the bill were not sufficient to warrant the court to interpose ami grant the relief prayed.
    Where certain circumstance*, vim the testimony of one wit.'tsSg were rot sufficient to refute the de^ • ihndaut’s. an*
    • Appeal from the Court of Chancery. The appellant, by his bill of complaint tiled on the 24th of April 1800, stated that JHchard Wootton, on the 5th of August 1791, assigned to him, for a valuable consideration, a bond executed by Benjamin Burgess, (since, deceased,) and by Thomas Tongue, his security, dated the 21st of April 1789, conditioned for the payment of £301 12 9 current money. That suits were commenced on the bond in the general court, and a judgment was obtained against Tongue at May term 1793j but Burgess, dying before the judgment court, leave was given to issue a summons against Agnes Burgess, his administratrix. That the complainant was frequently applied to by B. Burgess, in his life-time, to resort to 'Thomas Lane for payment, against whom Burgess had a judgment, obtained in the name of i?iehard Harwood for his use, in the general court at October tent) 1799. B, Burgess, as the complainant understood, was much involved in debt, and alleging that he wished to pay by this judgment, the complainant was induced so far to comply with his request as to go to Lane, and to put himself to some, inconvenience, expense and trouble, to receive tobacco and. cash, to be applied towards payment of his claim against Burgess. That the complainant received a letter from Burgess, dated the lGth of October 1792, requesting him to meet at the house or Bane on the Thursday then next, to settle. That the complainant accordingly niet, and received from Burgess, which he had received from. Lane, and paid to the complainant, 1637 lbs. of tobacco, at 35s per hundred, and £H 6 1- cash, which was by mistake, calculated to make together the sum of 04 16 6,-for which he gave Burgess, a receipt, dated the 23d of October 1792, and for which sum Burgess also gave a receipt to Lane. That the complainant, on his return home ou. the 25th of the same month, entered the payment.ou hid day book as of that date, as it was his custom to do on his store books when he received money during his absence from home; but that it was entered for the correct amount of the money and tobacco, to wit, ¡£¡03 16 6. rIhat the. complainant, after discovering the mistake, and wishing, to furnish a statement of his account, sent his account .against Burgess and Tongue, in which he qliargecl them. with the sum due on the judgment, and credited them, under the date of the 25th of October 1792, with the quantity of tobacco and cash, under the heads of tobacco account and cash account, amounting together to the sum of £103 16 6; but he expressly alleges, that the sum for which he gave the receipt, and the sum which he gave credit for in the account rendered, were for the same tobacco and money, and were one and the same, except the misfake in the cal - culation, and that he never did receive both sums separately, nor any further sum in the month of October 1792, more than is credited in his account against Burgess and Tongue, that is to say, £103 16 6, from Burgess and 7-ongue, or any oije on their account or behalf. That Burgess. relied entirely on Lane for payment of this judgment to the amount of his judgment against Laney that he was. not in circumstances to make payment himself without difficulty, and that he never was in the habit of making several payments in so. short an interval, t.o the complainant’s knowledge. The complainant states, that another payment was made to him in February 1793, by the purchase of a negro man from. Lqne, for £79 18. 9; and that Burgess, in his life-time, never set, up or claimed a credit on the receipt, and on the account rendered also, as separate payments, but acquiesced in the balance, as staled by the complainant; and the complainant does 'not believe that he left any paper or memorandum specifying such a claim. That after the death of Burgess, which happened before December 1793, he received from his widow'; 'Ltgnes Burgess, (now Bgries Cooke, the defendant,) on the 1.0th of. December 1793, as appears by her account, the sum of £51, by the purchase of a negro boy at a public saie. of her intestate’s property,, which was done by him to accommodate the administratrix. The complainant w>as applied.' to at the sale to consent to the property being sold on a credit, which he agreed to for the benefit and. convenience of. the administratrix. That he afterwards, on the 25th of March 1795, received from Tongue, the security, the sum of £37 9 0, and from Lane, in August 1795, the further sum of £153 7 2. The complainant admits that the several sums amounted together to £9 13 8 more than the balance due on the judgment against Lane, out of which the complainant was to be paid., but he alleges that they were not all received by him on account thereof, but that lie had ®rder from Bishop Claggett to collect and receive from Agnes Burgess a sum of money due on a judgment to Claggett, ou which accoun;, he also received afterwards from Charles Cooke, (who intermarried with flgnes Burgess,) tobacco and money to the amount of £30, 4 0, as appears by an account exhibited, by which a balance appears to have been due from the complainant of £1 10 5-|, ivhich he has been and still is ready to pay. That after the intermarriage of A. Burgess with Cooke, the personal estate of /?. Burgess, being insufficient for the payment of his debts, and Thomas Tillare! having- a claim against the estate, they put into his possession the papers belonging to the estate, with a view to his discovering any debt that inight be due thereto, and the complainant received from Tillará a letter dated tlie 29th of October 1795, stating that a balance was still due from the complainant on the sum received for Lane’s judgment of £20, and desiring payment thereofj but the complainant not admiliing the sum to be due, refused to pay the same, and afterwards a suit was instituted in the general court by Cooke, and Agnes his wife, against the complainant, for money had and received, in order to recover bade the sum alleged by them to be overpaid. That Cooke and wife rendered to the complainant an account made out by Tillará-, the charges in which account of £103 16 6, £79 18 9, £50 5 0, £37 9 0, and £153 7 3, are the same as those above admitted by the complainant, but he expressly alleges that the charge of £15 5 6, charged by them in the account, was for a hogshead of tobacco received by him on a judgment by A. %• B, Contee against B. Burgess; and that, the charges in their account of £104 16 6, and, £103 16 6, aré for one and the same payment in the manner above stated. That while the suit against him -was depending, the papers of the plaintiffs, at law were by their counsel delivered to the counsel of the complainant, (the defendant in the suit,) to examine, and were by him given to A. Contee, who took a copy of the account, and returned all the papers to the plaintiffs’ counsel. The complainant expressly declares, that he delivered to bis counsel a receipt which he, lite complainant, had obtained from Barbara Lane, one of the executors of T. Liane, which was a receipt from B. Burgess to T. Lane for the said sum of £104 16 6, or near that sum, for which the complainant had given to B, Burgess a receipt dated the 23d of O.ctober 1702. That tlie complainant’s counsel, TFilliam Cooke, Esquire, left the court before the expiration of October term 1799, and (before the complainant saw him that term,) engaged other counsel, to wit, William Kilty, Es-r quire, and put the papers, into his hands, informing him that some of them belonged to the plaintiffs; and the complainant is informed and believes, that the counsel for the-plaintiffs, John T. Mason, Esquire, had access to the papers in the hands of William Kilty, Esquire,, and took therefrom such as he alleged to belong to his client. But at the trial court the receipt for ¿0104 16 6, ornear that sum, was not to be found, nor the account drawn off by. 'Filiald-, on which Mr. Blasón, on the trial, declined at first to act as counsel, but employed another attorney, intending to give testimony as to the papers; but the coni: plain.ant not knowing what was become of the papers, and, wishing for nothing more than a,fair trial, admitted that such papers had existed, to wit, a receipt from him to JL Burgess, and also from B. Burgess to T. Lane, for :Gi04 16 6, ornear that sum, dated the 2Sd of October 1792?, and an account drawn off by Tillará. That at the trial the deposition of Barbara Lane, taken by consent, was read,,, in which sh.e stated.that the complainant had procured thq last mentioned, receipt from her, the purport of which she did not know, and that the same had not been returned, and that that circumstance, and the loss of the, other papers, was artfully and unjustly made use of in argument to injure the complainant’s character, and to.influence the determination of the jury The complainant solemnly declares that lie did not wish or design, n.or did he know that, any of the papers were missing or lost before he came to the trial court, October term 1799, and when be was in-, formed the papers were wanting, he admitted of such papers having existed, lie was at court several days, and at length was so much indisposed, that he left the court, and was informed the trial came on next day when he was, absent. The complainant is informed that Tillará was ex-, amined as an evidence for the plaintiffs, having declared, when examined on the voir dire, that he was not interested in the etentof the suit, although he declared in discourse of his testimony that he had a claim on the estate of Burgess, and had obtained an order to receive what might bq due from the complainant in payment thereof, which appears by bis letter to the complainant of the 29th of Ge - tober 1795. That evidence was also given at the trial of the above mentioned payments in tobacco and money, which Were never made, in discharge of the judgment by Bishop Claggett, and of the tobacco due to ./?. 4’ B. Cantee oii judgment, which the complainant had no means of proving, the application thereof resting solely in the knowledge of the plaintiffs; and that a verdict on the trial, was given in favour of the plaintiffs for the sum of £203 4 6 current money damages, and $15 and 1324 lbs', of tobacco, costs. The complainant states, that he is well convinced that the claim aforesaid would never have been brought against him if B. Burgess had lived, for he believes, that so far from there being any account or papers left by him to prove the justness of the claim, his books and papers, if produced, would show that no such claim existed, and that the judgment has been unjustly recovered. Braver for an injunction, and relief, &c. The accounts and judgments referred to in the bill were all exhibited. The chancellor granted an injunction agreeably to the prayer of the complainant. The answer of Jlsnes^ Cooks, smtí^liarles Cooke, her husband, against wlram^usT wife Agnes, the bill was filed, having since died;) admitted the bond executed by B. Burgess, &c. That in discharge of the bond, on the 15th of April 1792, there was paid in tobacco, valued at 32s 6d pr. cwt. the price agreed on, and including the cask, the sum of £15 5 G, and on the 23d of October 1792, by B. Burgess, the sum of £104 16 6, for which he obtained the receipt of the complainant. That Lane was indebted to Burgess, and that Lane, at the request of Burgess, on the 25th of the same month and year, in discharge of the claim, paid in money and tobacco the sum of £103 16 6; that Lane also paid on the 25th of February 1793, the sura of £79 18 9, leaving a balance due on the 10th of December following in favour of the complainant, and including interest, the sum of £74 15 8, That after the death of B. Burgess, and before she obtained a true knowledge of the transaction, and had ascertained the sum due, the following payments were made, to wit, £50 5 0 for a negro boy sold to the com- " plaioant on the 10th of December 1793, £37 9 0 paid him on the 25th of March 1795, and ¿6153 7 3 on the 29th of August 1795, and which payments she afterwards discovered greatly exceeded the balance due the complainant from her deceased husband. That she knows no other claim of the complainant on Burgess’s estate, either in his own right, or as the assignee of any other of his creditors, and that the different payments were made in discharge of the above mentioned debt; that the complainant, when it was discovered he liad been overpaid, did not refuse to refund on the ground that he had other claims, but because be alleged that he had not received the two sums of ¿gl03 16 6 and J? 104 16 6; that the defendant, to obtain back the money which had been unjustly paid, was obliged to bring suit in her name, and in the name of Charles Coolie her husband, and at October term 1799, by the verdict of a .juiy, obtained a judgment for the sum of ¿6203 4 6, that being the sum, including interest, which had been overpaid and exceeding any just claim of the complainant. That she is informed that any defence the complainant had against her demand, either because he was charged with more money than received, or that the money was tobe applied to other claims due him in any capacity whatever, »wpre^subjects for the decision of the court and jury, and the''pefendant, to support her claim there, -was obliged to resort to disinterested évidence, according to the rules of law; that the complainant had there every advantage the law recognizes of objecting to evidence, and cannot here, because he alleges improper evidence was received, defeat the effect of the verdict. She knows of no other claim by the complainant against her husband’s estate; to which he had a rigid to apply any of the payments; she trusts that a court of equity will not, after an administratrix had paid monies supposing them due, when it is discovered they were not due, and when a verdict and judgment are obtained for the same to be refunded, prevent her from obtaining the benefit of such verdict and judgment. A general replication was entered to the answer; and the injunction, on the motion of the defendant, -was dissolved by the chancellor on the 15th of February 1803. A commission issued, under which testimony was taken, and the accounts between the parties were stated by the auditor.
    The testimony taken was that of David Weems, who deposed that Charles Coolie, who married tire-widow of B. Burgess, before the institution of the suit by him and wife against Coniec, caine to the deponent and asked him to assist him in stating an account against Contee, but before they began to state the account, he related some circumstances in this manner, that they bad Contee's receipt for ¿3104 odd shillings, anil also Canter’s account, wherein there was a sum credited of about 20 shillings less than the receipt expressed, two days after the date of the receipt, which two sums he said were but one payment, agreeably to the information he had received from his wife. From that information the deponent refused to have any thing to do with it-, or any iiand in stating the account. In the course of conversation with Cooke, he objected to a sum cisarged in the account by Contee for commission; that on his account against Contee the balance was over ¿£15, but he would take 40 dollar's, and give a full discharge for the same.
    The case being argued by the counsel concerned,
    Hanson, Chancellor, at .Tune term 1804, by his decree states, that “it appears to him that the application of the complainant in effect is, that the chancellor act as a tribunal of appeal from the verdict of a jury. There is stated no surprize on the complainant, whilst defendant at law; no discovery of testimony since the trial at law. There is no sufficient proof of fraud. As to that part of the deposition which lias been considered as evidence of fraud, there is the answer of a defendant denying it; and the established principle of equity, respecting answers which defendants are compellable’to give, is well known.” Decreed, that the bill of the complainant be dismissed, but without costs. From this decree the complainant appealed to this court.
    The cause was argued before Chase, Ch. J. Txlghmaw, Buchanan, and Gantt, J.
    
      T. Buchanan, and Magruder, for the Appellant,
    con»' tended, l. That the court of chancery might decree against the answer upon the testimony of one witness, where there were circumstances concurring with the testimony They cited 1 Harr. Chan. Pr. 106. Sudg. L. V. 504. Arnot vs. Biscoe, 1 Ves. 97. Le Neve vs. Le Neve, 3 Atk. 650. S. C. 1 Ves. 66. 2. That a court of chancery might relieve against a verdict and judgment, where injustice had been done at law. Countess of Gainsborough vs. Grif 
      
      ford, 2 P: Wms. 426. 2 Eq. Ca. Ab. 245. Bunb. 178. Kent vs. Brigman, Pre. in Chan. 233. Ambler vs. Wyld 2 Wash. Rep: 36; M'Rae vs. Woods, Ibid 80. Cochran vs. Street, 1 Wash. Rep. 79. 3 Morg. Ess. 90. 2 Morg. Ess. 16.
    
      Johnson, (Attorney General,) for the Appellee,
    referred' to Gover vs. Christie & Jay, (ante 67;) and Garretson vs. Cole, 1 Harr, & Johns. 370.
   Chase, Cb. J;

delivered tlie opinion of the court. The cqurt are of opinion, that the facts set forth by the complainant iii his bill of complaint, are not sufficient to war* rant the court of chancery to interpose and grant the relief prayed by the complainant;

DECREE AFFIRMED;  