#### *Vanlew v. Bohannan, &c.

November, 1826.

Chancery Practice — Defence Available in a Court of Law.† — It is a general rule, that a Court of Equity will not allow a man to make a defence which he might have made in a Court of law. unless he shews some good reason why he did not make that defence in the Court of Law.

Same — Same,—But, if the defendant in Equity does not insist upon that objection, but voluntarily goes into the merits of the case, and in his answer admits facts, which, if they had appeared to the Court of Law, would have produced there a different result, a Court of .Equity ought to grant relief.

Vanlew filed a bill in the Richmond Chancery Court, stating the following-case: that a certain John P. Shields, executed his note in favor of Samuel G. Adams and the complainant, then merchants and partners, trading under the firm of Adams & Vanlew, for the sum of $106 87: that after the said firm was dissolved, the said note was transferred to Bohannan in blank, in the name of Adams *221*&*Vanlew, by the said Adams: that it was understood and agreed between Bohannan, Adams and Vanlew, that the «aid note was taken by Bohannan for as much as it was worth, and that he was not to consider Adams and Vanlew responsible to him, if the money could not be recovered of Shields: that suit was instituted by Bohannan, as assignee of Adams & Vanlew, against Shields, and judgment obtained; upon which judgment a Ca. Sa. issued, and the defendant took the oath of insolvency: that the said note was passed to Greenhow, and came to the hands of .Diddep, without any endorsement by Green-how : that suit was brought on the said note against the complainant, as surviving partner of the firm of Adams & Vanlew, upon the endorsement by Bohannan, for the benefit of the said Diddep: that no defence was made at law, in consequence of the absence of a witness who had left Richmond, without his residence being .known: that when the cause was tried, neither the complainant no his counsel was present, to move for a continuance, ■on account of the absence of the said witness. He therefore prayed for an injunction to the said judgment.

*The injunction was awarded.

The answer of Bohannan and Diddep admits, that the note in question was assigned after the dissolution of the partnership of Adams & Vanlew ; the said Adams then acting with full authority, as the agent of his co-partner, Vanlew : that it is not true, that it was expressly agreed and understood between Bohannan and Adams, that the former was to take the note without any liability on the part of Vanlew, if Shields should prove unable to pay it: that the note was assigned to Bohannan, by Adams, in part payment of a debt due by him to Bohannan, who did not consider Vanlew as bound for the payment, at the time of the assignment: that before the note was transferred to Diddep, he applied to Vanlew, who did no then deny his liability; and, although he afterwards refused to pay it, he never alleged that the ■note was assigned without recourse to him. As to the surprise alleged, in the trial at 'law, the defendants call for proof of the allegation, &c.

The injunction was dissolved, and an appeal was allowed by a Judge of this «Court.

J. Myers, and the Attorney General, for the appellant.

Scott, for the appellees.

The counsel for the appellant made four objections to the decree:

1. That the note was endorsed to Bohannan by Adams, as agent of the firm of Adams & Vanlew, subsequent to the dissolution of the partnership, and for the payment of Adams’ individual debt, which was known to the said Bohannan, at the time of the transfer of the said note.

2. That the note was endorsed long after its maturity, and consequently, subject, in the hands of the subsequent holders, to all the equity of the complainant against the said Bohannan.

*3. That if endorsed before its maturity, Vanlew was exonerated, by reason of the failure to place the note, (which was a negotiable note,) in bank, and to protest the same.

4. That the judgment at law, was obtained by surprise against the complainant.

For the appellees, it was contended, that a judgment having been obtained at law, and no sufficient excuse being offered why the defence was not made there, (the matter of defence being purely legal,) a Court of Equity cannot now grant relief, according to established principles.

*

 Judges Cabell and Coalter absent. .

†

See monographic *note on*“Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457. The principal case is cited in Hudson v. Kline, 9 Gratt. 386; Dey v. Martin, 78 Va. 5, and distinguished in Collins v. Jones, 6 Leigh 533.

November 9.

JUDGE CABELL

delivered the opinion of the Court.*

John P. Shields, being indebted to Samuel G. Adams and John Vanlew, merchants and partners, trading under the firm of Adams & Vanlew, executed his note to the said Adams & Vanlew, for the sum of $106 87, on the day of in the year 1816. The said note was, some time thereafter, and after the expiration of the partnership of Adams & Vanlew, transferred by the said Samuel G. Adams, in the name of Adams *&*Vanlew, to a certain Thomas Bohannan, in payment of an individual debt, due from the said Samuel G. Adams to the said Bohannan. The said note was transferred by the said Bohannan, but without his endorsing the same, to George Greenhow, and afterwards came into the hands of Thomas Diddep, without any other endorsement than that of Adams & Vanlew to Bohannan. Suit was brought on the said note, in the name of Bohannan, assignee of Adams & Vanlew, against John P. Shields, who took the benefit of the insolvent laws. It being thus ascertained that nothing was to be made from Shields, an action was instituted in the name of Thomas Bohannan, for the benefit of Thomas Diddep, against John Vanlew, surviving partner *of Adams *&*Vanlew, for the purpose of subjecting him to the payment of the said note, in consequence of the endorsement aforesaid, by Samuel G. Adams, in the name of Adams & Vanlew; and a judgment was obtained for $116 89. The object of the bill is to be relieved against this judgment.

It is incontrovertible, that if the facts above stated, had been exhibited at the trial at law, no judgment could have been obtained against Vanlew. But as that defence was not made in the Court of law, the question is, whether a Court of Equity can grant the relief now sought.

The rule has been long established, that a Court of Chancery will not entertain a bill for the purpose of allowing a man to make a defence, which he might have made in the Court of law; unless he shews some good reason why he did not avail himself of that defence in the Court of law. This rule is founded on the principle, that there ought to be an end of litigation; and that, consequently, where a matter has been once fairly investigated and decided in one forum, it shall not again become the subject of controversy in another. It was intended as a shield for the party who had prevailed at law. But, if he does not choose to avail himself of its benefit, if he *222voluntarily goes into the. merits of the case, and in his answer, admits facts, which, if they had appeared to the Court of Eaw, would have there produced a different result, neither the rule, nor the principle of the rule, is violated by pronouncing a decree, justified by his own admissions.

This view of the subject, is decisive of the case before us, and supersedes the necessity of determining whether Vanlew has proved a sufficient excuse for not having defended himself at law. The plaintiff, in the judgment at law, has admitted in his answer, that the note due to Adams & Vanlew, was assigned to him by Adams, for an individual debt due to him by Adams, and that at the time of the assignment, he did not consider Vanlew bound. *This unauthorised and improper act of Adams, could not impose any obligation on Vanlew.

The order of the Chancellor, dissolving the injunction, should be reversed, and the injunction perpetuated.

*

 Absent, the President and Judge Coalter.