Columbia,

Nov. 18*49.*

#### *The executors of Enos Tate*v. *Alexander Hunter.*

Complainant’s testator, in his lifetime, had brought an action of *assumpsit*against the sheriff for a sum of money collected by him under the process of the Court of Law, and retained to be applied to an execution which had been assigned to defendant. The suit had abated by the death of the testator, renewed by the complainants, his executors, and a verdict found for defendant. On appeal for a new trial, their motion had been dismissed. The complainants then filed their bill praying that the execution and judgment in question may be postponed to the judgment in favor of their testator, &c. The Court held the question to be *res adjudícala,.*

The general rule is that the judgment of a competent Court is binding and conclusive upon the parties, and will not be reviewed or reversed by any Court possessing concurrent jurisdiction.

In cases of concurrent jurisdiction the same rule as to the statute of limitations prevails both in the Courts of Law and Equity.

*Before*Dargan, Ch. *at*Abbeville, June, 1849.

Dargan, Ch. This case is a remarkable instance of the pertinacity with which litigious parties are disposed to prosecute their rights, real or imaginary. The same issues have *137been tried at law, between parties substantially the same; twice in the Circuit Court, and twice in the Court of Appeals,^ with varying success. The questions have been complicated on this trial with a great deal of extraneous matter not necessary to a decision by the Court. I feel indisposed to load this decree with a statement of all the irrelevant facts that have been brought to my notice. But as I am persuaded that nothing short of the *ultima ratio,*a trial on appeal in the last resort, will satisfy the parties, I refer to my notes of the evidence taken on the trial, the depositions taken by the Commissioner, the answer of the defendant, and the report of Judge Withers on the last law trial, (agreed to be received,) as containing all the facts that were brought out on the hearing of the case by me. From this mass 1 will briefly state such of the facts as I deem material to a proper understanding of the opinion that I am about to pronounce.

A. D. Hunter, the son-in-law of complainant’s testator, and the son of the defendant, was much embarrassed in his pecuniary circumstances; in fact, he was considered, as he has turned out to be, insolvent. The oldest lien on his property was an execution in favor of one M. B. Clark, for $1,000, besides interest; the judgment of which bore date August 5, 1839, and was assigned by Clark to the defendant. The next eldest *lien*was a mortgage of A. D. Hunter to A. Hunter, for negroes, dated October 18,1839, and executed to secure a debt of $5,885, besides interest. This bond was lodged in the sheriff’s office to be foreclosed. The next in order was a *fi. fa.*Speed, Hester and Tate *v.*A. D. Hunter, lodged February 2, 1842, amounting, at the sale of the property of A. D. Hunter, to 407 25. Then, *fi. fa.,*Enos Tate *v.*A. D. Hunter, lodged September 13, 1842.

On the 4th October, 1842, certain property of A. D. Hunter, including the boy Henry, (who, by an agreement, had been released from the mortgage,) was sold by James H. Cobb, as sheriff, and the proceeds of the sale amounted to $4,065 75. Two other negroes, May and Miriam, included in the mortgage, were also sold at this time, for $1,055. This was applied *pro tanto*to the mortgage, leaving of the proceeds of that sale, (of 4th October, 1842,) $3,010 75, to apply on the executions, according to their priorities. On *the fi. fa.*Speed, Hester <fc Co. *v.*A. D. Hunter, were paid $407 25. On *fi. fa.*Enos Tate *v.*the same, $1,326 91. And there was retained, for the satisfaction of the execution in favor of M. B. Clark the sum of $1,276 59; making the total of the sales of 4 October, 1842. On 7 October, 1842, the sheriff' sold ten negroes under the mortgage for $1,962, all of which was applied to the mortgage. On 7 November, 1842, as sheriff, he sold land for $1,500, and on 8 November, 1842, he sold fur*138niture, &c. for $993 65, the proceeds of both of which last sales were applied to the execution of complainant’s testator.

The sums applied in the Tate execution were as follows : Part of the proceeds of sale of 4 October, 1842, - $1,326 91 Sale of land, 7 November, 1842, ------ 1,500 00 Sale of furniture, 8 November, 1842, ----- 993 65

Total,.$3,830 56

This sum is insufficient to satisfy the debt j and the complainants claim the further application of the sum of $1,276 59, retained for the Clark judgment, on the ground that said judgment was either null and void, or satisfied. And this is the true issue, the sole controversy in the case.

Enos Tate, the testator, in his lifetime, at these sheriff’s sales had bought of the property of A. D. Hunter an amount exceeding that in controversy; and in settling with the sheriff he claimed to discount it on his execution. This the sheriff refused to allow, and refused title for the property purchased by Tate, except on the condition of payment. Whereupon Tate paid the amount of his several bids into the hands of the sheriff, and took titles, with a protestation as to his rights.

Enos Tate, in his lifetime, brought an action of assumpsit against James H. Cobb, (the sheriff,) for the sum of $1,276 59, which he had retained to apply to the Clark judgment. The suit abated by his death, and was renewed by his executors, Uriah O. Tate and Thomas J. Heard. The case was tried at March term, 1846, and the plaintiffs had a verdict for $1,276 59, the sum now in issue. On appeal the verdict was set aside, and a new trial granted. The case again came on for trial at March term, 1847, when the jury found a verdict, for the defendant. The plaintiffs moved the Court of Appeals for a new trial, and, on a hearing, their motion was dismissed.

Shortly after the termination of this controversy at law, the complainants filed this bill against the defendant, and they pray that the execution and judgment in the case of M. B. Clark *v.*A. D. Hunter may beset aside, on the ground that it is null and void, or satisfied ; or that, at all events, it may be postponed to the judgment in favor of their testator.

The question which presents itself *in limine*is whether the complainants are not concluded by the trial and judgment of the Court of Law. I think most decidedly that they are. The subject matter and the issues are precisely the same with those in the former trial. The complainants are also the same, and the defendant is *substantially*the party interested in and who defended the suit at law. The general rule certainly is that the judgment of a competent Court is binding and conclusive upon the parties, and will not be reviewed or reversed by any Court possessing concurrent jurisdiction. *139It is not only binding and conclusive, as to all questions of law and fact, that were made upon the fust trial, but as to( all questions of law and fact which, from the organization and powers of the Court, that first entertained the case, *might*have been submitted. *Simpson*v. Hart, *McDowall*v. McDowall, *Hibler*v. Hammond, *Stoney*v. *Bank of Charleston.*The rule extends even to foreign judgments, and proceeds from the comity of nations and of Courts, and the necessity of putting an end to legal controversies, and judicial tribunals of the burthen of repeatedly adjudicating the1 same matters. It is a rule of policy; nor is it unjust. Surely a party has no right to complain of the arbitrament of a forum of his own election. And his complaint would be equally unfounded if a judgment has been rendered against him in consequence of his own neglect or unskilfulness in developing the proper issues for the decision of the Court, or presenting in a proper manner the evidence that was within his reach ; exceptions there are to this rule. If a judgment has been obtained against a party by fraud, accident or surprise, or if there be subsequently discovered *written*testimony, not cumulative, and which could not have been produced by proper diligence and inquiry, this Court will relieve, so far as to afford another trial *de novo.*In reference to this iast ground, I said that the newly discovered evidence should be written or documentary; for this I apprehend to be the correct rule, notwithstanding the case of *Cantey*v. *the Bank.*It is not pretended, however, that the complainants’ case comes under any of these exceptions.

1 John. Eq. cases, 91. Bailey Eq. 324 2 Strob. L. 105 1 Rich. Eq. 275.

The only question worthy to be considered, is, whether this is a case between the same parties as those in the case of the executors of *Tate*v. *Cobb, sheriff,*tried at law. Upon this point, as I have already intimated, I have a very decided opinion. The sheriff in that case was merely a nominal party, and the defendant in this case was the real party in interest. The sheriff was simply a stakeholder, without a particle of interest. It mattered not to him which of the claimants recovered the money in his hands. The battle was fought over his shoulders by the real parties. Alexander Hunter was not only the real party, adverse in interest to the complainants, (who were plaintiffs in that case,) but he had notice of the suit, defended it by employing counsel, and paid them their fees and charges. He could not have testified for Cobb, on the ground that he had an interest in the event of the suit; for the judgement of the Court against the claim of the complainants would have given the fund directly to Hunter, there being no other claimant. If, under these circumstances, the verdict had been against Hunter, he could not have renewed the strife by another suit, either against the complainants or the sheriff. If, in such an event, *140he bad brought an action against the sheriff, for the money compiajnants had recovered against that officer, would the judgment of the court not have been an estoppel *1*qou]¿ she, jfj' 110t have held up that judgment for his pro-teetion,». and pleaded it in bar to the action 7 Could he not have said to Hunter, you were the real party defendant in the case; you had notice of the suit, and you defended it?

Quoted in Phil. Ev. from 11 25 trials’ 2 Douglass, 517.

The defence of the sheriff in the suit at law was not only for the benefit of the defendant, but was founded and was successful upon his right and title. He was represented by Cobb in that suit. His declarations would have been admissible in evidence ; and in fact, his agreement with Tate *was received*as a part of the testimony against him. This could have been allowed upon no other principle than that of having been regarded by the Court as substantially the real party defendant, or of there being such a privity between this defendant and Cobb as made them in interest the same party.

If an agent, acting for his principal, within his powers, is sued by a stranger for the funds of his principal, in his hands, and judgment is awarded against him by a court of competent jurisdiction, I apprehend that the principal cannot revive the litigation against the successful claimant in the same court, or in this court, except he comes here upon an equity not cognisable at law. If the property levied on by sheriff Cobb, under the Clark execution, had been recovered from, him in an action of trover, by a third party, on the strength of his title, the plaintiff in that execution, or his assignee, would have been concluded by the verdict. He would not be entitled to be heard again in this court, on the same grounds, or upon any grounds cognisable at law. The sheriff is the agent of the plaintiff in the execution, and continues tu he invested with that character until he collects and pays over the money. As was said in the *Duchess of Kingston’s case,*the court will take notice of the real parties to the suit. Such, also, was the doctrine held in the King’s bench, in *Kinnersly*v, *Orpe.*That was an action of debt by the owner of a fishery fora penalty of £,5, under the Stat. 5 Geo. 3, C. 14, for killing fish in his fishery. One Dr. Cotton claimed a right to the fishery in question. An action had been brought against some of his servants by Kinnersly, to try the right, and a verdict was found for the plaintiff. The defendant moved for a new trial, but his motion was refused. Cotton, not being satisfied, gave the plaintiff notice that he would order one of his servants to fish in the same place, with a view of procuring an opportunity to try the right again. He accordingly ordered another of his servants (the defendant Orpe) to do the act for which the action was brought. The plaintiff produced no other evidence than the record of *141the verdict and judgment in the former case, to show his con-elusive right to the fishery. This evidence was objected to,, on the part of the defendant, because the former action and this were not causes between the same parties; the name oí the former defendant being Thomas Orpe, and that of the present defendant William. The court overruled the objection, and held that the evidence was not only admissible, but conclusive, (both the Orpes having acted under the authority of Cotton, who, though not a party on the record, was the real defendant,) unless fraud or collusion could be shown. There was an appeal, which was dismissed. There were other points in the case. In reference to the former trial, Buller, Justice, said that *“*the record in the former case was admissible, though it was not conclusive.” The reason of its not being conclusive, I suppose to be that the record *of itself*{that being the only evidence introduced) did not show the privity of Cotton in the two actions, and that he was the real defendant, which proof could be supplied by parol. Thus, in this case, the action against the sheriff was assump-sit, for money had and received; and the verdict and judgment would not have shown the connection and privity between the defendant in the action at law and the defendant to this bill. The bill of particulars and parol proof were necessary to be resorted to, to establish that relation.

Upon the whole, I am of opinion that the trial and judgment in the action at law against the sheriff, is a bar to the complainant’s bill. And here I might pause, without entering into a discussion of the other questions that have been raised. I am, however, with the defendant, upon the merits of the case. There are a few prominent facts that supersede the consideration of all others, and are, in my judgment, decisive of the rights of the parties, even if the merits of their respective claims were open for discussion. In the first place, I do not perceive the semblance of a reason for supposing that the judgment of Clark *v.*A. D. Hunter was null and void in its inception, or discharged by the assignment. It was founded upon a full money consideration, the loan of $ 1,000, for which amount it was taken. The assignment to the defendant was perfectly *bona fide.*The assignment was made in consideration of the defendant having become the surety of A. D. Hunter, for this very debt, and an additional loan of $ 1,000. And the understanding was, that it was to he held as a collateral security or indemnity to A. Hunter, for this and other liabilities he had incurred, as the surety of A. D. Hunter, the defendant in the execution. I see nothing exceptionable in all this.

Then, as to the allegation that it had been satisfied and discharged by payments; there is, besides other circumstances, one fact which, to my mind, is conclusive upon this *142point. The execution was lodged August 5, 1839. More than two years afterwards, and but a month before the sale by the sheriff, by which it was satisfied, we find the Clark execution recognized as a valid and subsisting execution, and as due to A. Hunter. This recognition is distinctly made in the agreement of A. Hunter and Enos Tate, of September 12, 1842. This agreemeat is entered into with the knowledge and consent of A. D. Hunter, the defendant in the execution, without any protest or claim that it was satisfied. — • Surely he ought to have known, and must be presumed to have known, whether it was discharged. The parties have also stated in that agreement the conditions on which that judgment was held by A. Hunter, *to wit:*“as a security to keep himself indemnified in the cases of suretyship before alluded to, and for no other purpose.” And these are the terms on which A. Hunter still claims to hold said execution. How is it possible to get over these admissions by all the parties concerned?

After this agreement was drawn, (“ on reflection after the above was written,”) as the parties express themselves in the instrument, there was a modification of the contract; which was added by way of appendix to the agreement, before it was executed. By this modification of the contract, A. Hunter stipulated to release the execution, and to cause satisfaction to be entered thereon, as early as convenient, “ on condition that his son, A. D. Hunter, does confess a judgment to him, or in his favor, for the amount that he is bound for him as security; the same to be entered up after Mr. Tate’s are entered up.” This agreement is executory, and was to be performed by A. Hunter, on a condition, namely: the confession of a judgment by A. D. Hunter, for the amount for which his father was liable as his surety. An executory agreement, even where it is not upon a condition, would not, *ipso*facto, operate as a discharge of an execution. It would serve as a basis for a bill in this Court, for a specific performance, and this Court, in a proper case, would decree satisfaction. In such a case, it would be competent for the defendant to show any just and reasonable ground to induce the Court to withhold its aid. But in a case like the present, where the execution was agreed to be discharged, upon the condition of the defendant in the execution confessing another judgment, how is it possible for the party, in whose favor such a stipulation is made, to claim, in this or any other Court, that the execution should be satisfied without the performance of the condition? If the complainants had filed a bill to carry into effect this agreement, and had failed to show that the condition had been performed, the bill would have been dismissed as a matter of course.

But the complainant relies upon the letter of the defend*143ant to sheriff Cobb, dated October 7, 1842. And one of the counsel for the complainant, in his argument, admitted that t the claim set forth in the bill must stand or fall upon this letter, and the agreement of September 12, 1842. In reference to the letter, it is to be remarked that it is not an agree-*meat between*parties, but a private letter to a person who may, *quoad hoc,*be regarded as the agent of the writer. As evidence, it was only competent to be offered as an admission or a declaration to a third person. Considered in the light of its containing an admission of a *further*contract, as to the Clark execution, it is without a consideration. The consideration expressed is, that his son, A. D. Hunter, had delivered up to him three negroes, and relinquished all further claim to them, as also to those in the possession of the sheriff. The three negroes alluded to, and those in the possession of the sheriff, were negroes that had been mortgaged by A. D. Hunter to his father. The mortgage had been forfeited. The mortgagee had demanded the negroes. Some of them had been seized for foreclosure, and .were in the hands of the sheriff; and three of them A. D. Hunter had refused to deliver up. To the whole of them the defendant had an unquestionable title, and A. D. Hunter no shadow of right. Considering the letter as containing an admission of a contract, it was without a consideration, and was *nudum j> actum.*

I think that the true construction of this letter is to consider it as an allusion to the agreement of September 12, 1842, by which the Clark execution was agreed to be released. The letter was penned in the confidence that the agreement would be fulfilled. But when A. Hunter went to demand the negroes under the mortgage, his claim was violently resisted. A. D. Hunter took down his gun, and made such a demonstration of resistance, that the defendant, with his party, went away, and never got possession of the negroes. The precise date of this transaction does not appear. The witness, (Peter Gibert,) without being very positive as to the date, thought it was in September. He was positive it was after the date of the agreement of September 12, and before the sale in November. It is my opinion that the letter to the sheriff was written in the faith that the agreement would be fulfilled ; and that the collision that occurred on the demand of the negroes, brought about its subsequent revocation. I cannot believe that the letter to the sheriff could or would have been written after the transactions to which the witness (Gibert) testifies. The defendant, finding his claim to the negroes under the mortgage resisted, countermanded his order to the sheriff.

I consider the former trial, and the verdict in favor of the sheriff, as a bar to any question being again raised by these complainants, as to the validity and efficacy of the Clark *144judgment, for the purposes and objects for which it was assigned to A. Hunter. Considering the case *upon its*merits, come t0 l^e conclusion that the said judgment and execu-tjon, by virtue of its assignment to A. Hunter, is valid and efficacious for those same objects and purposes, namely : his indemnity on his liabilities as the surety of his son. To these objects its operation must be restricted. The complainants have not prayed for an account, but, under the statements in the bill, and the general prayer for relief, they are entitled to have an account taken. The defendant is entitled to hold the mortgage and the Clark judgment as an indemnity against sums paid for his son, or existing liabilities on his account. .The aggregate amount he is entitled to receive, by virtue of the mortgage and the execution ; and the balance, if any, should go to the complainants. No debts due by A. D. Hunter to A. Hunter, except those arising from the relation of principal and surety, ate to be included in the account; excepting, however, the expenses incident to the foreclosure of the mortgage.

It is ordered and decreed that the Clark execution stand good for the purposes designated in this decree. It is also ordered that it be referred to the Commissioner to state an account between the parties, on the principles herein adjudicated; that the defendant be entitled to receive from the hands of the sheriff, the amount that shall be found due to him, and that he be restrained from receiving more than said amount; and that each party pay his own costs.

A. Hunter, defendant, appealed, on the following grounds :

1. That all the matters in the bill of complaint contained, having been fully adjudicated by a competent tribunal, as decided by the Chancellor, his Honor erred in ordering an accounting by defendant.

*2.*Because the decree establishes that *“*the complainants are concluded by the trial and judgment of the Court at law,” and the question of payment, as to which the account is now ordered, was distinctly made in the trial at law, and adjudicated for the defendant.

3. Because, on the merits, complainants are not entitled to anything. No wrong has been done their testator; there is no equity in the bill; and their remedy, if any they have, is at law, and this Court without jurisdiction.

4. Because the relief granted by the decree is beyond the prayer of the complainants, and the scope and object of the bill.

5. If complainants or their testator ever had any cause of action or suit, either in law or equity, it is barred by the statute of limitations.

6. Because the bill should have been dismissed, and without costs to the defendant.

*145The complainants appealed, on the following grounds :

1st. Because the execution of M. B. Claik *v.*A. 1). Hun-, ter, assigned to A. Hunter, was satisfied, and should have been so declared.

2d. Because his Honor held the proceedings at law embraced the merits of complainants’s bill, and that the questions were *res adjudicata.*

3d. Because his Honor did not limit and restrain <the lien of the judgment and execution of M. B. Clark *v.*A. D. Hunter, to the properly exclusive of those slaves known as slaves of A. D. Hunter’s wife.-

4th. Because his Honor did not carry out, and order to be enforced, the agreement between defendant and complainants’s testator.

*Thomson*and Fair, complainants’s Solicitors.

*Perrin, McGowen and Wilson,*defendants’s Solicitors.

Curia, *per*

Caldwell, Ch.

The first question is, has the subject matter of the plaintiffs’s bill been already adjudged in the Court of Law 7

The plaintiffs are the executors of Enos Tate: the testator brought an action of assumpsit against James H. Cobb, late sheriff of Abbeville district, which abated by the plaintiff’s death; these plaintiffs, then, instituted a similar suit against Cobb to recover $1276 59 with interest, for so much money had and received as sheiiff out of the proceeds of the property of A. D. Hunter, under execution. The plaintiffs endeavored to establish that this amount ought to be applied to the payment of Enos Tate’s judgment *v.*A. D. Hunter, although it was junior to a judgment of M. B. Clark *v.*A. D. Hunter, (that had been assigned to Alex. Hunter,) which they insisted was inoperative, or had been satisfied. James H. Cobb was the nominal defendant, Alexander Hunter was personally present at the trial, and sustained Cobb’s defence, and “was” (says Justice Withers in his report,) “obviously the party in interest.” The letter of the 7th of October, 1842, written by Alexander Hunter, and sent by A. D. Hunter to sheriff Cobb, and the agreement of Alexander Hunter with Tate, were offered and received in evidence ; the plaintiffs also offered the declarations of Alexander Hunter in the fall of 1842, as to the amount for which he was then liable for A. D. Hunter — to this defendant objected, but the objection was overruled, and the declarations were admitted in evidence.

The defendant, then, went into an account of what he had paid for A. D. Hunter, and also of what he had received from the proceeds of the' sales of the mortgaged negroes, which left a balance of about $1260 due to Alexander Hunter. The report of the circuit Judge shows that the various *146questions, arising out of the transaction, were discussed and submitted to the jury, who found a verdict for the defendant. On an appeal the case was sent back for a new trial without prejudice, and the attention of the parties particularly directed to enquiries that had been pretermitted on the former trial, and that were supposed to be material to develope the merits of the case. On the second trial the jury found a verdict for the defendant, and the plaintiffs again appealed; and the Court of Appeals, in refusing the motion for anew trial, says, *“*We are indeed now informed at the bar, that the real and substantial issue was overlooked by the plaintiffs, inasmuch as it has been discovered, *too*late for the last trial, that the money in controversy was part proceeds of negroes expressly and unconditionally released by Hunter from the lien of his execution in favor of that of Tate, by the terms of their agreement of 12th September, 1842, to wit: that all the ne-groes that came by the wife of Alexander D. Hunter should be liable to Tate’s execution.”

Allen v. Rountree, MS. Cases, 1832; Divis v. Willborne, 1 Hill *L.*R. 27: *Brown*v. McMullen 29; Davis *v.*Hunt, 2 Bail. R. 412.

The Court then proceeds to say, i! this matter is suggested by a portion of an agreement used on both trials — the fact referred to was at all times capable of ascertainment; was indeed as fully and as conveniently accessible to the plaintiffs at one time as another: we are, therefore, constrained to dismiss this consideration on the present occasion.” From a careful comparison of the matters set forth in the plaintiff’s bill, with what occurred on the trial at law, it is difficult to perceive any material difference between them. The omission to produce proof at law, in relation to Agnes’s negroes, (those that had been mortgaged,) has not been satisfactorily supplied here, and every other point involved in the issue in that Court, seems to be set up only m a new shape in the plaintiff’s bill, the result of the case mainly turning upon the question, was Alexander Hunter’s execution inoperative, or had it been satisfied ?

Alexander Hunter appears, in the proceeding at law, to have stood in a similar condition to one who has been vouched in an action to try the title to property that lie had warranted and sold. When the sheriff collected the money he at first might be considered as the stakeholder for the judg-an(^ mortgage creditors, but when he resisted the claim *l^e*plaintiffs, he put himself in the attitude of the defendant’s agent, and Alexander Hunter must, therefore, be considered the real defendant, whose better claim to the fund protected the nominal defendant, and prevailed against the plaintiffs. If the plaintiffs had finally succeeded against the sheriff in that case, can there be a doubt that Alexander Hunter could not have come here and setup the same claim to the fund as plaintiff in a bill, when he had been defeated in his defence at law, on the same grounds ? The sheriff *147appears to have stood solely upon the rights of Alexander Hunter, who sustained and directed the defence, and thereby distinctly put in issue his claim to the money, and became a privy to the proceedings. It is very clear that he have been incompetent to testify as a witness in that case, on account of his certain and immediate interest in the result.— The mere form of the suit, or the use of the names of nominal parties, cannot divest the case of its real character, but the issues made by the real parties, and the actual interests involved, must determine what persons are precluded from again agitating the question, and who are estopped by the previous decision.

Bail. R.412.

Dubosev M'clanaghan, Columbia, Dec'r 1829; Wightman sheriff of Charleston, Mss. December, 1825.

Chitty on Cont. 54; Bulow v. Godard, 1 M. & McC. 45; Moses v. McFarlan, 2 Bur. 1005.

The claim of a judgment creditor to funds in the sheriff’s hands, collected from the sale of the debtor’s property, is frequently asserted by this form of action, which seems to be admirably adapted to unfold the plaintiff’s cause of action, and the defendant’s grounds of defence. Although such2 questions, in a plain case, might be determined on a rule against the sheriff, yet where there is any complexity in the eireumstances, and the question depends upon testimony of witnesses to establish facts independently of what appears from the executions and returns of the sheriff, the Court generally declines to decide in a summary way by rule, and leaves the parties to pursue their remedies in a due course of law. Of late years, special issues are frequently ordered by the Couit of Law, to be made up between the parties, for the purpose of trying their rights to the fund, and the practice seems to be peculiarly proper where the money has been collected by the sheriff under the process of that Court.

The form of action at law was the most favorable that could have been adopted to try the questions between the parties, and no testimony appears to have been excluded there, that could have been offered here: indeed a suit money had and received approximates more nearly than any other form the mode of proceeding in this Court, and is sentially an equitable action, in which the plaintiff is entitled to recover money from the defendant which, *ex equo et*bono, he ought not to retain. There was no difficulty in reaching the merits of the case in that tribunal, which was as competent as this Court to decide the case.

Whatever funds defendant received under the mortgage, was a fair subject for proof ,on that trial, as here, and ought to have been, adduced: th.e plaintiffs’s omission to offer evidence on this, or on any other point involved in that suit, brings them within the rule, that not only what the party in a cause *has.*but whatever *he might have, litigated*in a Court of competent jurisdiction, shall not be agitated again in a subsequent suit between the same parties. The plaintiffs were bound to establish their claim by evidence, and *148their failure to do so cannot give this Court jurisdiction : they not only adduced the letter, agreement and declarations of defendant, but went into a full account of what he had re-0f ^ £)_ Hunter, thereby recognizing him as the *real*defendant, and making their case turn upon the material point in issue, the validity of the judgment assigned by Clark to him. After all this, it was certainly not *res inter alios acta.*

Dec'r Term, 1847,Columbia.

2 Strob. E. It 14.

2 Story Eq. Jur S. 1520-1028; Wilson v. Wilson, Mul. Eq. Rhyn v. Vincent’s ex’rs. 1 McC. Ch. R. 169; Ex parte Hanks Cheves E. R. 203.

The proof here has not shed any new light on the subject; nor have the plaintiffs, in any essential part, varied their case from what it was at law; the question must, therefore, be considered as *res*adjudícala, as it arose out of the same subject matter which has heretofore been tried in a competent Court between the same parties, substantially. This case resembles *Aiken*v. Peay, where the proof extended into the accounts between the respective parties and one Ford, who was their debtor, and turned out to be insolvent: the verdict at law, in favor of Peay, was held to be conclusive, and plaintiff's bill was dismissed.

As we fully concur with the Chancellor who heard the case on the circuit, that it is *res adjudícala,*this view would be sufficient.to terminate it, as the plaintiffs cannot sustain their bill against the defendant. But another important question has been raised ; does the statute of limitations operate as a bar? This deserves to be considered and determined. The plaintifls’s bill was filed on the 19th of April, 1848, and their equity or cause of action must have arisen in October, 1842, when sheriff Cobb received and retained the sum of $1276 59 to pay the judgment of M. B. Clark, who had assigned it to defendant. If the Courts had concurrent jurisdiction, (about which there can be no doubt,) the plaintiffs have exercised their privilege of choosing their tribunal, whose judgment must be presumed to be just, and with which it would seem they should be content. In cases of concurrent jurisdiction, the same rule as to the statute of limitations prevails in both Courts. In the recent case of *Turnbull*v. Gadsden, it was held that the statute of limitations is equally a bar in this as in the Court of Law, where plaint^ might have prosecuted her cause of action. It seems to be reasonable, consistent and just that the same rule should be applied to legal rights of which the Courts have concurrent jurisdiction. “ The statutes of limitations,” Justice Story, “where they are addressed to Courts of Equity, as well as to Courts of Law, as they seem to be in all cases of concurrent jurisdiction at law and in equity, (as f°r example in matters of account,) to which they directly apply, seem equally obligatory in each Court.”

There are other cases in which this Court acts upon the *149analogy of. the statute of limitations at law, and bars the relief in equity. As four years had elapsed between the accruing of the plaintiffs’s rights, and the filing of their bill, their claim is barred by the statute.

It is, therefore, ordered and decreed that the circuit decree be modified, and that the plaintiffs’s bill be dismissed.

Dunkin ana Dargan, CC. concurred.

Johnston, Ch. absent, from indisposition, at the hearing.

*Decree modified.*