#### Hawkins v. Depriest.

Argueü Thursday, October 26th, 1815.

1. Equitable Relief — Where Judgment against Plaintiff No Bar Thereto.* — 'Under what circumstances, a vendor of land may recover the purchase money, by a suit in equity, after bringing his action, and being cast, at law.

*2.*Same — Same.—A Verdict and 1 udgment at law, against the plaintiff is no bar to his recovering, in equity, for the same cause of action; it not appearing that the merits of the controversy were fully and fairly tried and determined at law; and the case stated in his bill, and supported by proof, being such as to entitle him to equitable relief.

A bill in chancery was exhibited in the County Court of Campbell by John Depriest against Robert Hawkins ; stating, that some time in the year --, the plaintiff sold a quantity of land, containing-acres in that county, to the defendant of the sum for -pounds, which he promised to pay in the fall ensuing : that the plaintiff executed a deed for the land, and, being informed that it was necessary to acknowledge the reception of the money, gave a receipt on the back of the conveyance, without ever having received it; that, when the plaintiff instituted a suit for the money, the defendant, ^taking advantage of the receipt, prevailed, and now refused to pay the said money ; “all which actings of the defendant were iniquitous.” The prayer of the bill therefore was, that the defendant by his answer should set forth the particular quantity of land he purchased, and the price; how much he had paid, and in what manner ; and that he be decreed to pay the balance to the plaintiff, with interest.

The defendant pleaded the judgment at law in his favour in bar of the plaintiff’s demand; and also answering said, “that he purchased land of the complainant, for which he had made full payment; and that the complainant had no legal or equitable claim upon him for one farthing.”

By a copy of the record of the suit at common law, it appeared that the plaintiff brought an action of assumpsit in the County Court of Campbell, against the defendant, for the price of a tract of land, said in the declaration to have been sold and conveyed by the plaintiff to the defendant for the sum of 3001. ; that, at the trial, on the plea of non assumpsit, the witnesses proved that the defendant agreed to give the plaintiff one hundred pounds for two tracts of land ; that the attorney for the defendant objected to this evidence, as not supporting the declaration, and the court refused to admit the same to go to the jury ; to which opinion of the court the plaintiff excepted; that a verdict was found, and judgment rendered for the defendant; but no appeal was taken.

Two certified copies of deeds duly recorded, both bearing date the 7th of July 1791, were also filed ; showing that the plaintiff, in fact, sold and conveyed two tracts of land to the defendant, for the sum of fifty pounds each ; on one of which deeds, a receipt was endorsed, of full satisfaction, on the day of the date thereof, for the land thereby conveyed ; on the other, there was no such endorsement.

Sundry depositions were taken; from which it appeared, that no money was paid at the time of writing the receipt on the back of the deed ; (which a subscribing witness considered a mere matter of form ;) that, afterwards, the defendant paid about fifty-two pounds, and claimed credits for some tobacco, and corn, and also for work done in covering *a tobacco house ; which credits (except that for the tobacco,) being disputed, he determined to stand a suit.

The County Court, (allowing, it seems, a credit of six pounds for the tobacco ; and disallowing the other credits, to which the defendant did not appear to be entitled,) decreed that the plaintiff recover against him forty-two pounds, with five per centum per annum interest, from the 7th of July 1791, till payment, and the costs. Upon an appeal to the Superior Court of Chancery for the Richmond District, this decree was affirmed j *228•whereupon the defendant again appealed.

Wickham, for the appellant.

I rely upon the judgment at law as a bar to the relief which the appellee is seeking. The jury found a verdict for the defendant upon the merits. The bill is for a blank sum. If the plaintiff found himself unprepared and surprised, he might have suffered a non suit. In this respect there is a difference between the situations of the plaintiff and defendant. Where a defendant suffers judgment by surprise, he may obtain relief in equity ; but a plaintiff cannot, because he ought to take a non suit.

If, in this case, the Courts of Equity and Common Eaw had concurrent jurisdiction, the plaintiff might elect between them ; but, having made his election, he is barred.

No fraud or mistake is alleged. The deed must be presumed to have been according to the fact of the case. Upon the merits, the case is in favour of the appellant.

Nicholas, for the appellee.

The judgment at law is not a bar to the suit in equity in this case. At law the deed was an- estoppel. It is extremely doubtful, therefore, whether the plaintiff had any remedy at law. To be a bar, a decision must be fair and full and upon the merits ; not on a collateral point, (a) Here the cause was not determined' on the merits, but on a mere question whether the evidence offered was admissible.

The bill demands a discovery. The answer, instead of disclosing the circumstances is evasive. The defendant endeavours **to shelter himself under general' assertions. The plaintiff’s neglecting to take a non suit might be an argument against his obtaining relief by a subsequent suit at law ; but not in a Court of Equity, where justice ought to be done between the parties.

Fraud is charged in the bill; for the plaintiff says, that the defendant, though he has not paid the money, endeavours “iniquitously” to take advantage of the receipt. The testimony incontestibly shews, that the money was not paid.

The statute of frauds is no bar to our getting relief. Our bill is for specific performance of a written agreement. We have performed on our part: the appellant has not on his part.

Wickham, in reply.

The question whether the Court of Common Eaw had jurisdiction, or not, is closed as it respects this case. When a Court of Common Eaw has taken jurisdiction, and decided a case, a Court of Equity cannot decree that that court had not jurisdiction. But, whether this be so, or not, the plaintiff, who brought the suit at law, is precluded from contesting the court’s jurisdiction, and is bound by the judgment. The cases cited by Mr. Nicholas are all of applications by defendants at law for relief in equity.

If the answer was evasive, the plaintiff should have excepted to it. But how is it evasive ? Only in neglecting to answer particularly, in relation to points as well known to the plaintiff as to the defendant.

The bill of exceptions only shews that the testimony of certain witnesses was rejected, but not all the evidence. The record does not shew that the cause went off upon that point. There might have been other evidence.

The statute of frauds does apply. (1) The written agreement, as evidenced by the deed, was in consideration of money *paid. The attempt is to prove, by parol testimony, that the contract was for money to be paid. -It contradicts the deed. Even if the merits were in favour of the plaintiff, the law would rather permit injustice in a particular case, than a general inconvenience. All the land-marks of actions are not to be broken down to prevent injustice in one case.

Wednesday, November 1st, 1815,

*

See monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

The principal case was cited in Oswald v. Tyler, 4 Rand. 34, 45.

(a)

2 Wash. 255, Pickett v. Morris; 1 Wash. *79,*Cochran v. Street; 2 Wash. 80, M’Rae v. Woods; 2 Com. Dig. 70; 2 Atk. 603, Child v. Gibson.

(1)

 Note. In this case the statute of frauds was neither pleaded, nor relied upon in the answer. See Coop. Eq. Pleadings, 255, 256; Mitford, 210, 211; Rowton v. Rowton, 1 H. & M. 92; Vance v. Walker, 3 H. & M. 209. — Note in Original Edition.

the court affirmed the decree.