
    *George v. Strange’s Ex’or.
    October Term, 1853,
    Richmond.
    Injunctions — Against Judgments — Offsets — Adequate Remedy at Law-Case at Bar. — An injunction to a judgment at law will not be sustained to allow the defendant at law to set up payments or offsets, which he might have pleaded at law: and if a discovery was necessary to enable him to prove them, he should have filed his bill of discovery in aid of his defence at law, or he should have filed interrogatories to the plaintiff under the statute.
    The only question involved in this appeal is, Whether the appellant Edmund George, is entitled to a credit for four hundred and eight dollars and nineteen cents, with interest, the amount of a certain bond of Allen & Walthall, on a judgment obtained against him by the appellees as executors of Gideon A. Strange? Another subject was involved in the controversy in the court below, but no objection is made to the decree which was rendered thereon. The case, so far as it relates to the question above mentioned and is material to be stated, is as follows:
    The appellant George filed his bill in the Circuit court of Fluvanna in September 1843, stating that he and said Strange in the latter’s life time, had sundry trades which resulted in the purchase by the appellant of three several tracts of land in Fluvanna; one at the price of one hundred and fifty dollars, another at the pi ice of one thousand four hundred dollars, and the other at the price of two thousand seven hundred and fifty-four dollars. That he had paid the purchase money of the two first mentioned tracts to Strange or his executors, and part of the purchase money of the last mentioned tract to Strange. That the executors of Strange had instituted suit on the law side of the *court on the bonds of the appellant for the purchase money of the la,st mentioned tract, and recovered judgment thereon for five thousand and ninety-eight dollars and sixty-eight cents, to be discharged by the payment of two thousand five hundred and forty-nine dollars and thirty-four cents, subject to a credit of three hundred dollars, December 28th, 1837. That he was entitled to an additional credit of four hundred and eight dollars and nineteen cents, with interest from December 1st, 1837, it being the amount of a bond of Allen & Walthall assigned by the appellant to Strange, of which two hundred dollars was to be retained by Strange in part payment of the bonds on which the said judgment was founded, and the balance was to be handed over to the appellant. That after the death of Strange the appellant called upon one of his executors Magruder, to hand him over the said bond of Allen & Walthall or the money, which said Magruder refused to do, claiming the bond as the property of his testator’s estate, by virtue of the said assignment; and that the appellant was unable to establish the fact of the said assignment by any evidence then in his possession; and he therefore called upon the said Magruder to say upon oath if the said bond thus assigned did not come into his possession as one of the bonds of Strange’s estate, and if he did not refuse to deliver it to the appellant; and also to state how much of said bond was paid to his testator in his life time, and how much had been received by him since his testator’s death: And praying to be allowed credit on the said judgment for the amount of said bond, and for an injunction to further proceedings on the judgment. An injunction was accordingly granted as to the said sum of four hundred and eight dollars and nineteen cents, with interest thereon from 1st December 1837. Official copies, numbered 1, 2 and 3, of the deeds from Strange to the appellant for the said *three tracts of land, were exhibited with the bill. The deeds bear date in 1835 and 1836; that which conveys the last mentioned tract of land being dated the 10th of November 1835. The other exhibits filed with the bill were official copies of the said judgment at law, which was rendered September 5th, 1843, and of two papers purporting to be, one of them a receipt of G. A. Strange to Edmund George, dated the 25th December 1837, for said George’s draft on Allen & Walthall for two hundred dollars, being a part of their note to said George for four hundred and eight dollars and nineteen cents, payable 1st instant; also an acceptance of Jacob Shook, held by J. A. Weed for said George’s benefit for three hundred dollars, payable 25th-28th instant; for all of which said Strange was to account to said George; the other a letter from G. A. Strange, dated Richmond, 9th January 1838, addressed to Edmund George, Fluvanna county, in which the writer says, “I have succeeded in getting the money from Mr. Weed very promptly. ” — ■ “Brown & Walthall have not paid me any money. Allen begs for a little indulgence, and assures me it shall be forthcoming. Not needing it, have given them a few days to blow on; especially, as you requested me not to press them. When I get it, will let you hear from me.”
    The originals of the two last mentioned exhibits are officially certified to be “now on file in the office of the Circuit superior court of law and chancery for Fluvanna county, (on the law side,) in the suit of Strange’s ex’ors v. Edmund George.” In April 1845 the appellee Magruder, one of the ex’ors of Strange, filed his answer, stating that he did not regard the said George entitled to any further credit on the bonds for which the judgment was recovered than the three hundred dollars allowed by the jury. That at the trial of the suit at law, the appellant filed his plea, *and the original of the said receipt relied on to support his claim to the credit of four hundred and eight dollars and nineteen cents; but the jury refused to allow any part of said pretended payment embraced in said receipt, save the said sum of three hundred dollars. That respondent found the bond of Allen & Walthall for four hundred and eight dollars and nineteen cents among the papers of his testator, with an endorsement thereon, by which it was regularly assigned by George to Strange; and regarding it as the absolute property of Strange, refused to deliver it to George when demanded by him, unless he would pay the amount of it: That a credit for one hundred and fifty dollars received by Strange in his life time was endorsed on the bond. That respondent had never received one cent on account of it; having learned, upon enquiry as to the condition of the obligors soon after he became executor of Strange, that they were utterly insolvent, and that nothing could be made out of them: and that he was utterly ignorant as to what consideration passed from Strange to George for said bond. The bond is exhibited with the answer. There are two endorsements upon it; one purporting to be an assignment thereof by George to Strange, dated December 25th, 1837, and the other a receipt of Strange for one hundred and fifty dollars on account thereof, dated 20th January 1838. The only evidence in the case bearing on the question now in controversy is the deposition of Morris, who states that a short time after the death of Strange he was in want of money and proposed to borrow it of George, who said he had in the hands of Magruder executor of Strange a draft on Allen & Walthall for four hundred and eight dollars and nineteen cents, which he would let deponent have the use of; that he, the deponent, applied to Magruder for the draft, which he refused to give up, stating that he considered ■■ it to belong to the ^estate of Strange. The date of Strange’s death does not appear in the record. The only remaining fact appearing in the record which can have any relevancy to the question, is a statement made by the appellant in a supplemental bill offered to be filed in the case in April 1845, that Strange’s executors held another bond against him for four hundred and sixtj'-six dollars and sixty-six and two-third cents, on which they had recovered judgment on the law side of said court; and that at different times, in July and August 1843, he paid the amount of said judgment, except a balance of eighty-four dollars and fifty-three cents, which remained unpaid. On the 6th of April 1846, a final decree was rendered in the case, disallowing the appellant’s claim to a credit for the amount of said bond of Allen & Walthall, and dissolving the injunction which had been granted on account thereof: And from that decree this appeal was allowed.
    Grattan, for the appellant.
    Randolph, for the appellee.
    
      
      Injunctions — Against Judgments — Necessity tor Taking Advantage of Remedy at Law. — On this question, see principal case cited in foot-note to Slack v. Wood, 9 Gratt. 40, wliere there is a large collection of cases, among others all the cases that cite the principal case.
    
   MONCURE, J.,

after stating the case, proceeded:

The appellees claim the bond of Allen & Walthall as the property of their testator, because it was found among his papers at his death, with an assignment to him from the appellant thereon endorsed. This fact affords a presumption of ownership sufficient to sustain their claim unless repelled by other evidence. The only evidence in the case which tends to repel it, is the receipt of Strange for the draft on Allen & Walthall for two hundred dollars in part of their bond, .and his letter of the 9th January 1838. This evidence applies only to trto hundred dollars of the bond, and leaves unaffected the claim of the appellees to the residue. There is not enough in the case to make them chargeable with the residue, even if it were considered *that their testator received the bond for collection only. There is no evidence to show that the bond was collected, or could have been collected, except as to the credit of one hundred and fifty dollars endorsed thereon; and the appellee Magruder avers in his answer that he had never received a cent on account of the bond, having learned, upon enquiry soon after he became executor of Strange, that the obligors were utterly insolvent, and nothing could be made out of them.

Whether there is enough in the case to make the appellees chargeable with the amount of the draft, might be a question of difficulty. On the one side it might be said that the appellant being largely indebted, and having made various payments to Strange at and after the time of the assignment of the bond, it ought to be presumed that the amount of the draft was accounted for in some of their settlements. On the other it might be said that the burden of showing that it had been accounted for devolved on the appellees; and that not having shown that fact, they are therefore still bound for the amount.

But I deem it unnecessary, if not improper, to decide that question in this case. If the appellant was entitled to any credit on account of the bond of Allen & Walthall, he had a plain and complete remedy at law bj' pleading payment or setoff in the suit in which the judgment enjoined was recovered. Indeed the appellee Magruder in his answer avers that at the trial of the suit the appellant filed the original re'ceipt and claimed credit for the amount of the bond, but the jury refused to allow it; and he refers to official copies of the verdict, judgment, receipt and letter aforesaid as part of his answer.

It is unnecessary to enquire whether this averment should be taken to be true or not. It is sufficient that the appellant had an adequate remedy at law, and shows no sufficient reason for not having availed himself *of it; or for having a new trial, if he resorted to his legal remedy and was unsuccessful. That a court of equity has no jurisdiction in such a case has been often, and recently, declared by this court. The cases are numerous, and it is needless to cite them. The only allegation in the bill which can tend to excuse the failure of the appellant to defend himself at law is, that he was unable to establish the fact of the assignment by any evidence in his possession, and he therefore calls upon the appellee Magruder to say upon oath if the said bond thus assigned did not come into his possession as one of the bonds of Strange’s estate, and if he did not refuse to deliver it to the appellant when the receipt of Strange was exhibited to him; and also to say how much of said bond was paid to his testator in his life time, and how much to him since his testator’s death. But it is.not pretended that any of the facts embraced in this allegation, even if they be considered material, came to the knowledge of the appellant after the trial of the suit at law. He then knew that the bond had been assigned to Strange and probably still remained in the hands of Strange’s executors, and he could have resorted to a bill of discovery, if necessary, pending the suit at law. That he should have done so, and not suffered the judgment to be rendered at law and then filed his bill, is shown by the case of Faulkner’s adm’x v. Harwood, 6 Rand. 125. Indeed a bill of discovery was unnecessary, as a discovery might have been had under the statute, in the suit at law.

I am therefore for affirming the decree of the court below.

The other judges concurred in the opinion of Moncure, J.

Decree affirmed.  