The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-03-13
than this, that discounts shall no, be first set UP in
| equity without some sufficient reason.

thsto rchet IN equity, IN vast, IN dover, and
in the case of a nuisance, though it may, also be
had at law: this is true as q general PROPOSE
tor; but it is not true, even in those cases,
where there is no impedimient at law ; for
wherever that is the case, this court should not
interfere. AS TO the severity OF the law, have
nothing to say except, that cannot lend my aid,
10 assist party, to avoid the consequences of a
statute unless he brings himself within the
rule as before laid down il the statute is kcyd
and aaiusf, the Legislature should change it but
this court should not.
The notes OF the other counsel next in or
der and SO far rs he has taken different view
OF the subject from MIR. Hay, they will be stated
and considered.
He said, that if A was sued on bond, and
negItScatlv suffered Judgment to SO against
him By asfarii, when he might have defended
himself. and proved payment of the debt; yet
that this court would relieve him that his eli
ents were b!ameless, and that if he was in an en-
ror, he was partly brought into it by the court of
appeals, in the case OF White, White, and Co
VS.. Banis,er's eXcrs. l WASH 165. whore it ne.
yer was doubted, but that a court of equity
would give relief, Notwithstanding the party com
plaining, might have resorted 10 writ Of ,cpic-
YIN that lie had prac.ised law for IS years
and upwards, and in all that time he had never
known bat one writ of e5!cvin prosecutcd and
that ut least twenty cases, like the present, lad
been entertained i'll the courts OF equity that
the writ of ,etlevia was nearly as o6socte, the
auaita qgereia that courts of law would al.
low of suits for money paid by nris.ais 4 court
ofeqtI y, If one had given his bond for money,
under like circumstances, would relieve against
4 judgement thereupon" and he closed his re-
marks by complaining of the animsdycrsions OF
the court upon the conduct of his clients.
AS to AS case, repeat again, that this court
could not relieve IN such case, without violat
ing every legitimate principle of the court, un
less the application was made within the rule as
laid down.
The misrepresentation as to the case Of White,
Whiitie and Co. vs. Banstcr's exOr's proves
how dangerous it would be to the common law
jurisdiction OF this country, to open the door of
tins court to protect our citizens against the
mistakes of counsel, and more especially, when
we consider what number of inexperienced
young gentlemen daily turning out in the
profession of the law have very attentiyely
examined this case, for the principle said to have
been decided init, and cannot find even the
word repLeuiH in any part of it, which shews,
that the question as to Jurisdiction was not made
and certainly there is no principle better known
than this, that question not made, in the deci-
sion OF a case, is never considered as settled by
il. But the case itself is totally unlike the pre-
sent: for the appellees in that case, were cxccu-
tors. and had distrained for rent upon lease
made by themselves upon the authority Of their
testator's will, and the discount offered was
debt due ~ their testator, and fit had been al
lowed, IT might have subjected them to devas.
tavit; and therefore, upon every principle the
appellants could not be relieved, but in court
OF equity, as their relief depended upon the a.
mount OF the assets, an amount of which was di.
rected, although the injunction was dissolved.
Although the counsel has practised law for
twenty-three years aid upwards, and has not in
all that time known but on. writ of replevin 20 be
prosecuted ; yet this only proves, that from his
great attention to his profession, in other res
poets, he has not taken time to read with attenti
on the reports of our own courts and therefore,
will, with his permission refer him to another
case IN 2. Wash. II and two others in l. Call
~ and 4O5. which have come to The court of
appeals ard how many others, that have not
been brought UP to that court, cannot say. Il
is true, that such an action is not very common
but this is no objection TO the legality of it for
1t is expressly authorised by the Legislature and
forms part OF one OF our most prominent sta
tutes, in the edition of the laws by Plea. and
Pace p. 153. and should be resorted to upon ell
proper occasions frst because it is the law
and secondly, because the trial must be by a ;.-y
AS To the number of cases like the present,
which may have been entertained in equity, il
may be well accounted for by all those who will
give themselves the trouble to CANINE the
of the decision oithe case of Barrett vs. F,oyd in
the year l790, until the decision of the case of
Terrell vs. Dish in 1899 but this case, and ano.
Their which followed Of Turpin VS. Thomas in
1903, most clearly overruled the case of Barrett
VS.. Floyd, as well as all those determined, in the
mean time, upon like principles and again set
tied the line OF demarcation between the courts
OF law and equity upon very correct principles ::
and pledge myselfto be among the last to refuse
my aid to support it.
Surely the counsel was not serious, when he
remarked, that the writ of,ebkecin, was as near
ly obSofetf, the audita quireia for the former
IS not only prescribed as legal remedy, by a
very recent act OF the egsiature, and il frequent
iy put in practice but the latter, even in Eng
land, has long since given way to a summary
mode of relief upon motion, and there, as Judge
Blackstone says, is quite driven cut of practice
and think may venture to say, that it never
was introduced into this country.
It's certainly true that a court of law will en-.
terrain suit for money paid by mistake and
that court ofequiiy win relieve against iudg-
ment obtained upon bond, given for money,
under like circumstances and for this plain rca.
son that at law you cannot go into the conside.
ration OF the bond, and therefore it is good
ground for relief in equity but this is not the
plaintiff $ case for they knew what they were
about.
Upon this view Of the subject, these general
rules present themselves as proper for the gov.
eminent of court Of equity.
1. That in all cases where remedy may be had
at law, reiist shall not be had in equity unless
there be some inlpedimcm at law and,
q. That in all cases where relief can be had n,
las, il shall not be had in e7ty, unless the case
falls within the rule az before laid down and
which has been the standing course Of the court