#### *Lockridge v. Sharrot and Another.

April, 1834,

Richmond.

(Absent Brooke, J.)

Chancery Practice — Injunction against Assignee — Dis-mission without Prejudice — Costs in Appellate Court.* —Upon a bill against two persons, namely, the assignor and assignee of a debt, for which judgment has been recovered at law against the plaintiff in eguity, praying an injunction, the assignee appears and answers, but the assignor is not brought before the court by regular process; it turns out, *147that the plaintiXt has no just claim to relief ag-ainst the assignee, but enough appears to shew that he may have a just claim against the assignor, for the amount due on the judgment; and the court dissolves the injunction, and dismisses the bill, generally: Hem), the decree should have been without prejudice to any suit of the plaintiff against the assignor; and the decree being general, it shall he reversed for that cause, and a decree without prejudice &c. entered; yet the appellee (the assignee) shall have his costs in this court,

Lockridge exhibited a bill against Sharrot, in the superiour court of chancery o£ Greenbrier, stating, that Lockridge and Sharrot being together in Richmond, and Sharrot having twenty-two beeves for sale at that market, it was agreed between them, in order to enable Sharrot to get a better price of the beeves, that they should join in representing to the butchers, that Lock-ridge had offered 483 dollars for the whole “lot of beeves,” though, in truth, no such offer had ever been made, nor had there been any treaty between them for the sale and purchase of the beeves, nor had Lock-ridge ever seen them: that on the day after, Sharrot, pretending he had sold the beeves to Lockridge for the 483 dollars, brought a suit against him, procured an order for appearance bail on the writ, and had it served on him at Richmond: that Lockridge, being thus arrested and in custody, in a place where he was a stranger, and therefore unable to give bail, had no other way to be relieved from confinement, but to take the beeves at the abovementioned price, and therefore he agreed to do so, and thereupon paid Sharrot 242 dollars in cash, and gave him a note tor the balance of 241 dollars: and that Sharrot, having thus iniquitously extorted x'this note from him by duress, brought a suit thereon against him in the county court of Bath, and recovered judgment. Therefore, the bill called on Sharrot to disclose the truth of the transaction, and prayed relief in general terms.

An injunction was awarded, to inhibit Sharrot from proceeding to execute his judgment at law, till further order.

Sharrot in his answer, denied every material allegation of the bill, and declared, that the transaction was an actual bona fide sale by him to Lockridge, of the twenty-two beeves, for 483 dollars.

In September 1823, an order of court was made, by consent of parties, refering the matters in dispute in the cause to arbitrators. And in June 182S, the arbitrators met (in pursuance of a notice to Lockridge, though he was not present at the arbitration), and awarded that the injunction which Lockridge had obtained, should be dissolved, and his bill dismissed with costs, and that Sharrot should have the benefit of his judgment at law, and be at liberty to execute the same. The award was returned to court.

In June 1826, the defendant’s counsel moved the court to dissolve the injunction, according to the award, and the plaintiff’s counsel moved for leave to file a supplemental bill. The court overruled the motion to dissolve, and gave Lockridge leave to file — ■

A supplemental bill, in which he stated, that after the order of reference to arbitrators was made, Lockridge, despairing of being able to prove his case as alleged in his original bill, against Sharrot’s positive denial of the allegations thereof in his answer, came to a settlement with Sharrot, and paid him the whole amount of the debt, and took his receipt in full for the payment; and then Sharrot migrated from the commonwealth. That after this, Given the executor of Dinwiddie, pretending that Sharrot had assigned the claim to Dinwiddie, gave Lockridge notice to attend the arbitration, and promised him that nothing should be done till he should arrive at the place appointed for the meeting *of the arbitrators. That Lockridge set out from home to attend the arbitration, with Sharrot’s receipt for the debt in his pocket, to lay before the arbitrators; but, on the way, he met Given, who told him the arbitrators had met, and made their award. That Lockridge had since been advised, that his payment to Sharrot was a matter not within the terms of the submission, and that the arbitrators could not have taken it into consideration. That if an assignment of Sharrot’s claim against Lockridge was made to Dinwiddie (as Lockridge now believed was the fact), Dinwiddie afterwards relinquished it; and, at all events, Lock-ridge had no notice of the assignment, at the time he paid the debt to Sharrot. Therefore, the bill made Given executor of Dinwiddie a party, and prayed, that the award should be set aside, that the defendants should be perpetually injoined from executing the judgment at law, and general relief.

Given executor of Dinwiddie answered, that the debt was assigned to his testator for valuable consideration, before the judgment at law was recovered; that the reference of the original cause had been made by Sharrot contrary to Dinwiddie’s wishes; that he as executor of Dinwiddie, gave Lockridge notice of the time and place of arbitration, but he denied, that he promised Lockridge that nothing should be done by the arbitrators until he should be present. He said, the arbitration had been fairly made, upon due notice to Lockridge; and, therefore, he insisted on the award. He also questioned the genuineness of the receipt o f Sharrot to Lockridge exhibited with the bill, and the fact of the payment of the debt to Sharrot.

No proceedings were had against Sharrot, on the amended bill.

There was no proof, that Lockridge had notice of the assignment to Dinwiddie, at any time before he received notice from his executor to attend the arbitration. On the other hand, there was no proof of the payment of the debt by Lockridge to Sharrot, or of the genuineness of Sharrot’s receipt for the same.

*The chancellor (after overruling a motion made by Lockridge for a continuance) dissolved the injunction, and dismissed the bills with costs; from which decree Lockridge appealed to this court.

Leigh, for the appellant.

Johnson, for the appellee.

*

See generally, monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518; monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

*148TUCKER, P.

This case is somewhat perplexed, owing to the awkward manner in which it has been conducted.

The original bill ought never to have been entertained, as it alleged a gross combination between the plaintiff and defendant to deceive others. But the allegation was denied by the defendant, and was not proved, and, the case being submitted to arbitration, was substantially disaffirmed by an award that the injunction should be dissolved. This, then, settled and put an end to the matters of contest in the first bill.

On the return of the award, a dissolution being moved for, and there being, at the same time, a motion for leave to file a supplemental bill, the first motion, was overruled, and the second granted. The supplemental bill alleged, that one Given the executor of Dinwiddie had assumed to be entitled to the judgment at law as assignee of Sharrot, and had given notice to him to attend the arbitration, which he designed to do. His apology for not attending is denied, and not proved; so that that matter is out of the case. He further alleged, however, that between the agreement to refer and tlie arbitration, he had, without knowledge of any assignment to Dinwiddie, paid off the amount of the demand of Sharrot himself; and he produced his receipt. This receipt, he says,-he designed to produce before the arbitrators, had he reached them before their award. He admitted his belief, that Sharrot had at one time assigned to Dinwiddie, but he alleged that Dinwiddie’s claim was afterwards relinquished ; which allegation is denied, and not proved; so that, as between these parties, the assignment *must be presumed. Of this assignment Dock-ridge said he had no notice; and no notice is proved. As the case stands, then, it in effect presents these questions only, as far as Dockridge and Dinwi.ddie’s executor are concerned: 1st, Can' Dockridge now make this defence, as he failed to make it before the arbitrators? And I think he can, since the receipt, being posteriour to the reference, and not in issue, formed no part of the matter referred. 2nd, Has Dockridge in fact paid the money, or (which is equivalent) is this receipt genuine? This was the question fairly between these parties; and Dockridge having failed to prove the receipt, the injunction was properly dissolved, and the bills properly dismissed; that is to say, the original bill was properly dismissed, as to Sharrot, and the supplemental bill, as to Given the executor of Dinwiddie. But the cause not having been brought to hearing upon the supplemental bill as to Sharrot, I do not think it was right to pronounce a decree, which closed forever Dockridge’s right of reclamation from Sharrot, if, in the same cause, or in any future contest, he should be able to prove the genuineness of the receipt. Eor, though Dockridge had no right to a continuance as against Given, who was before the court, who had filed his answer, and had been long delayed, yet as to Sharrot, who was not before the court, who was the party to the receipt, and whose conscience Dock-ridge had a right to appeal to, he had a right, either that the cause should be contintied as to him (Key v. Hord, 4 Munf. 485,) or that the bill should, as to him, have been dismissed without prejudice. Which of these courses was most proper? The latter, assuredly. Eor Sharrot, being out of the state, and not appearing to have property within it, there was nothing upon, which the decree of the court could properly have acted. Therefore, it was not amiss, under the circumstances, to dismiss the bill; but it should have been dismissed: without prejudice; for if Dockridge should now be compelled to pay the amount of the judgment at law to Given, he would have a right of reclamation for the money paid. to Sharrot as evidenced by the receipt.

*Must we, then, reverse for this. cause, and throw the costs unjustly upon Given? I think not. We have authority for affirming the decree with costs, and yet modifying it by a provision that it shall be without prejudice. Scott v. Baskerville, and Ellis v. Baird, 6 Munf. 20, 456. The court is, therefore, of opinion, that the decree be affirmed, but this affirmance to be without prejudice to any suit or action at law or in equity, on the part of Dockridge, to recover back from Sharrot, the amount alleged to have been-paid by him, and to be evidenced by the receipt.

Decree affirmed, without prejudice &c.