#### *Mann v. Drewry.

April, 1834,

Richmond.

(Absent Brooke, J.)

Appearance *Ball*— Judgment—Surprise-—Equitable Relief.* —Appearance bail upon a writ in debt in a dusting's court, being- taken by serjeant, plaintiff sends a written order to the clerk to dismiss the suit at defendant’s costs, being induced to give the order upon a promise of defendant to give security for the debt; which promise he fails to fulfil, and thereupon plaintiff countermands the order of dismission; meanwhile, defendant absconds; the hustings court discharges the bail; plaintiff appeals from the order discharging the bail to the circuit court, which reverses it, and enters j udgment for the debt against the defendant and the bail: — then, the bail files a bill in equity, shewing that the defendant had just set-offs against the debt, which if he had not been precluded, by the course of the proceedings at law, from defending the suit, would have been shewn and would have sufficed to extinguish the debt: Heed, the court of equity has jurisdiction to relieve the plaintiff in eqnity against the judgment at law; dissentiente Carr, J.

Matin brought an action of debt against John Drewry, in the hustings court of *118Richmond, on a promissory note for 673 dollars, and bail being required on the writ, Martin Drewry became bound as appearance bail for John the defendant. Afterwards, and while the cause was yet at the rules in the hustings court, Mann wrote and delivered to the principal John Drewry, an order to the clerk of the court, directing him to dismiss the suit at Drewry’s costs, which Drewry delivered to the clerk, and agreed in writing to the dismission of the suit at his costs; and the clerk indorsed on the order that the suit was to be dismissed according, at the then next ensuing term. Before the term, however, Mann countermanded his order to the clerk for the. dis-mission of the suit. Meanwhile, John Drewry, the principal, absconded. And at the next term, Martin Drewry moved the court to discharge him from his undertaking as appearance bail, on the ground, that Mann’s order to dismiss the suit, precluded him from further proceeding against the bail; *but the court, not then deciding upon this motion, gave the plaintiff leave to amend his declaration, and remanded the cause to the rules. At the quarterly term next after this, when the cause again stood on an office judgment against the principal and bail, which would stand confirmed if not set aside during the term, the bail renewed his motion to be discharged, and in opposition to that motion, Mann adduced evidence, that, at the time his order was given for the dismission of the suit, John Drewry promised to give him ample security for the debt, by mortgage to be executed the day after the date of the order; that the order was given in consideration of that promise; that John Drewry absconded without complying with it; and that Martin Drewry, the bail, was nowise party to the agreement between Mann and John Drewry, out of which the order to dismiss the suit arose.

The hustings court, however, made an order discharging the bail from his undertaking, and entered judgment against the principal only. Mann appealed to the circuit court of Henrico, which reversed the judgment, and entered judgment against the principal and bail.

Whereupon, Martin Drewry exhibited a bill against Mann and John Drewry, setting forth the proceedings and judgment at law, insisting, that after Mann had given the order to dismiss the suit, and John Drewry the principal had absconded, if he might be allowed to retract the order for dismission at law, yet he ought, in equity, to be inhibited from proceeding against the bail; and alleging, that his principal, John Drewry, had just set-offs against Mann’s demand, which would have sufficed to extinguish it; that he, as the appearance bail, would have availed himself of the privilege given him by law to defend the suit, and to have proved those set-offs of his principal, if he had not been deprived of the opportunity to make the defence, by the course of the proceedings at law, and if he had not been uninformed, at the time, of the particulars of the set-offs; that those set-offs arose out of work done by John Drewry as a carpenter for Mann, and materials furnished; and that, moreover, it had been discovered, since the judgment, that ^almost the whole of the debt due on the promissory note of John Drewry to Mann, on which Mann’s judgment was founded, had been included in another promissory note of John Drewry to Mann, which had been discharged. Therefore, the bill prayed, that John Drewry’s set-offs against Mann’s demands, should now be enquired into and ascertained ; that it should be ascertained also, whether the promissory note had not been, for the greater part, discharged in the manner alleged; and, if it should be found, that the debt had been so discharged by John Drewry, or was extinguished by his just set-offs, that Mann, should be injoined from proceeding to execute his judgment at law against the appearance bail.

The chancellor awarded an injunction.

Mann, in his answer to the bill, insisted, that the responsibility of Martin Drewry, as appearance bail, was conclusively fixed by the proceedings at law; and he denied all the allegations of the bill, both as to the fact of the greater part of the debt due on the promissory note on which his judgment was founded, having been included in another note that had been discharged, and as to the set-offs which the bill alleged that John Drewry was entitled to against his' demand.

Pending the suit, the defendant John Drewry died; administration of his estate was committed to the serjeant of Richmond, and the suit was revived against him; but he never answered, and as to him the bill was taken pro confesso.

There were many exhibits, and several depositions taken, and filed.

The chancellor, — either thinking that Mann’s order for dismission of his suit, ought in equity to relieve the appearance bail from his undertaking, or that the other allegations of the bill, were substantiated by the proofs,' — that is, that the debt due on the promissory note to Mann, had been discharged, in the manner alleged, or if not, that whatever was justly due upon it, was extinguished by set-offs, to which John Drewry the principal debtor was entitled, — perpetuated *the injunction. Prom which decree Mann appealed to this court.

The cause was argued here, by Johnson for the appellant, and by Daniel and Stanard for the appellee.

The questions of fact put in issue by the pleadings, were much controverted; but the only point of law was, whether the case was proper for relief in equity.

*

See generally, monographic *notes*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, and on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

TUCKER, P.

On the question of jurisdiction, in this case, I have no difficulty. Martin Drewry the bail had a right to avail himself of every defence of payment or set-off against Mann’s demand. His principal, John Drewry, was bound in equity to afford him all these defences; and to have withdrawn them, by transfer to-another, or by pocketing the amount of his set-offs himself, and leaving his bail to pay the whole debt for him, would have been a fraud of the deepest die. The bail is, indeed, by his engagement, bound for the debt of the principal; but the principal *119himself was only debtor for the difference between the amount of his promissory note and that of his discounts. Even at law, the bail would be entitled to use the set-offs of the principal; for the statute provides, that the bail may defend the suit; and as it does not limit him to any one defence, he must be, and always has been, considered as entitled to all the defences of which the principal might avail himself.

In another view, there can be no doubt. Mann’s judgment is hanging over the bail. He obtains an injunction, and makes the principal a party. He states all the facts, and prays relief. Has he not a right to demand, that the principal shall pay the debt? And if the principal has already money enough in the creditor’s hands to pay it, has he not a right to demand, that that application shall be made of it?

The case is not changed by the death of the principal, and the grant of administration of his estate. For the right had attached by the demand in this suit, in which John Drewry was made a party. The account for work done by *him for Mann, was withdrawn from his general assets, if it ever could have been considered as part of them (which I do not think it could) until this debt was paid. For, if the administrator had sued Mann, Mann might have set-off this debt. Bull. N. P. 179. Moreover, the administrator, having made no defence, or pleaded debts of superiour dignity, the bail has a right to be indemnified out of these funds.

Then, the question is, whether the bail lost his remedy, because he did not make his defence at law? I think not. Waiving the considerations which obviously present themselves, for greater indulgence to the bail than to the principal, for omitting a legal defence, it may safely be asserted, that there never was a more complete case of surprize. The victory of the bail in the hustings court, on his motion to be discharged, has been his ruin. If he had failed there, he would have gone on to defend the suit. But the hustings court discharged him. Of course, the office judgment was not set aside, and peremptory judgment was given against the principai. The plaintiff Mann appealed. The circuit court reversed the judgment, which had declared the bail to be exonerated, and proceeding to enter such judgment, as according to its opinion ought to have been given, gave peremptory judgment against him. How could he prevent it? The circuit court could not entertain a motion to set aside the office judgment, and remand the cause for further proceedings; nor could it, on his motion, have set aside the office judgment, received his plea, and proceeded to try the case. I am not aware how he could, by any means, have been let into a defence at law. Here, then, was a complete surprize upon him, which demanded the relief of a court of equity.

The question of fact is more difficult. I think, however, it sufficiently appears, on the one hand, that there were set-offs, which entitled the plaintiff to relief, but not so ascertained and established, as to justify a perpetuation of the injunction. [The judge examined the evidence, and shewed, that it left many of the facts doubtful or not ascertained with precision.] For this reason, I am of opinion, that this *'court (sustaining the jurisdiction) should reverse the decree, and remand the cause, in order that it may be referred to a commissioner to settle the account of the set-offs to which Martin Drewry, in right of John Drewry, is entitled.

CABELE and BROCKENBROUGH, J., concurred.

CARR, J.,

dissented — He said, This is a bill filed by Martin Drewry, to injoin a judgment which Mann obtained against John Drewry and Martin as his appearance bail. The bill takes two grounds of relief: 1. that the order to dismiss the suit at law, given by Mann to the clerk, discharged the appearance bail; and 2. that there are set-offs to the full amount of the judgment. The chancellor perpetuated the injunction; he has not told us on which point. If we may conjecture, I should suppose it was that he considered the order of dismission a discharge ; for he could hardly have perpetuated the injunction on the idea that nothing was due, without taking an account. It is not material, however, to enquire into this, as I consider both grounds equally untenable, and that this is a case, with which equity has nothing to do.

As to the discharge of the bail, it is settled by a long train of decisions, that in the case of bail, courts of law act upon the same principles with courts of equity: it is, indeed, emphatically called their equitable jurisdiction, Dickinson v. Sizer, 4 Rand. 113, and the cases cited: and it may be safely affirmed, that whatever will entitle bail to a discharge in equity, will avail him at law, if according to the rules of the law forum, he can make out his case; if not, that circumstance, to be sure, may compel him to resort to equity. It is a rule equally well settled with the last, that wherever there is concurrent jurisdiction, and the one tribunal has possession of, or has tried the cause, the other will not interfere. Equity cannot correct the errors of a court of law, however gross. In the case before us, the question raised by the hail for his discharge, was fully heard at law by two courts, adjudged against him by the last, and that judgment acquiesced in. This can never be rejudged in equity.

*We are then to consider this, simply as the case of bail applying to be let into equity to shew discounts against a judgment at law; and we must not forget the rule we have so often enforced, that discounts are never to be first set up in equity, without a good excuse given for not offering them at law. Bail is surety; and if the plaintiff, without his assent, do any thing to change his situation, he is clear; but in the defence of the suit, he has no greater latitude, no greater equity, than the principal. By our law, the appearance bail, if the defendant do not appear, may defend the suit; but it must be on the same ground that would avail the defendant. If a party can shew, that material facts have come to his knowledge since the trial at law, which he could *120not by due diligence have possessed himself of before that trial, this, applied to discounts as well as to any other defence, will be considered a sufficient excuse to open the door of 'equity.

I understand two grounds to be taken on this point for the bail: 1. that the decision in his favor by the hustings court, prevented him from making defence there, on the ground of set-offs, which defence he could not make in the circuit court; and *2:*that his total ignorance of his brother’s affairs disabled him from bringing forward the defence.

As to the first, I see nothing incompatible in the bail’s setting aside the office judgment and pleading payment, and before the same court, submitting a motion for his discharge as bail, on the ground of the order of dismission. They were distinct matters of defence, but consistent. A plea on setting aside the office judgment, does not oblige the bail to abide by it forever. In Dunlops v. Laporte, 1 Hen. & Munf. 22, it was decided, that after appearance bail had pleaded to the action, the defendant might, at a subsequent term, appear, give the same person as special bail, plead, and go to trial: But suppose the bail excusable for depending solely upon his motion to be discharged, on what ground is it asserted, that he could not, after the decision of the circuit court have pleaded, and defended the suit on its merits? I protest, I cannot conceive. It will be admitted, I presume, *that if the hustings court had overruled the motion for the discharge of the bail, he might then have pleaded to the action; and if so, had he not an equal right, when the circuit court overruled that motion, and set aside both the judgment of discharge and the judgment by default, in order to enter the proper judgment? If the bail at that moment had said to the court, the law gives me a right to defend the action, but depending on my right of discharge, I have not pleaded; you have taken from me this shield; suffer me now to plead, and I have it in my power still to protect myself, by shewing discounts to the full amount of the debt: if this permission had been asked of the court, is it conceivable that it would have refused it? If it had, an exception would, I think, clearly have reversed its judgment. Even in England, where there is no statute giving the bail a right of defence, this would be granted. Thus, in Clarke v. Hoppe, 3 Taunt. 46, a motion was made to set aside proceedings against bail, on the ground that the principal defendant had been declared a bankrupt, and obtained his certificate, before the time of pleading, which if he had pleaded it would have been a complete defence, but he failed to do so; and it was contended, that the bail ought not to suffer by his negligence; but the court said, that in every case, the bail put themselves in hazard of suffering by the folly and negligence of their principal; that it is their business to watch proceedings &c. and it refused to permit the bail to avail themselves of the bankruptcy; but as the original judgment had gone by default, it suffered them to make up an issue to try the right, the bail piece in the meantime to stand as a security. I do not think then, that the ground of surprize will support the jurisdiction.

Then, 2ndly, as to the alleged ignorance of the bail of his brother’s affairs, disabling him from offering the setoffs at law. I do not think this ground made good by the circumstances proved in the cause; on the contrary, it seems to me wholly untenable upon the proofs. [The judge here went into an examination of the evidence, to shew that the bail had, or might have had, full knowledge of the defence of his x'principal.] The cause was not tried in the hustings court, till more than three months after the principal had absconded, and the trial in the circuit court was not till nearly two years afterwards: surely, this was time enough, with only tolerable diligence, for the bail to have gotten all the information he wanted with respect to setoffs.

■ It seemed to be supposed, that because he was not the principal debtor, but bail only, equity would be open to him, even without shewing an excuse for not making defence at law; but this court has more than once decided the contrary. Carter v. Cockrill, 2 Munf. 448; Brown v. Toell’s adm’r, 5 Rand. 543. This last is a case exactly in point.

I think the decree should be reversed, and the bill dismissed.

PER CURIAM.

Decree reversed, and cause remanded, that an account may be taken &c.