The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-03-13

could not place the defendants, Hancock and Gil
lat in better situation than he himself occupi-
ed, but the plaintiffs might, and so they did by
giving their bond to those defendants to illus
| trate this by example, let it be stated, that A
| transfers his claim on b to c, and upon appica.
ton d executes his bond TO C, who thereupon
discharges a, and afterwards e obtains a judg-
| ment against B upon this bond, vino applies for
relief TO court OF CHANGER, upon some ground OF
latent equity between him and Alb should Ger
tainly be turned over To A and not allowed relief
! against c. This is a like case with the one before
| the court.
Motion again denied.
Mr. Hay then said, that ne had been employed
| in this case, and should have been glad to have
! made some remarks before the court mad decid.
ed, If he had been apprised of the courts inten-
ton.
The Chancellor said he might be heard on the
first motion day and the counsel who made the
motion said, he would, with the leave of the
court, avail himself of the indulgence granted to
Mr. Hay to put into the Chante!ior's hands some
nstes, which the court said he might do.
Mr. Hay was fully heard, and the other counsel
filed his notes-ovid advisaye vuit.
FebruGry Term, 1910.
b. the Chancellor:
Mr.. Hay, in taking general view of
this case, said, that il was not universally true
that where relief could be had a, law, it should
not be had in equity for example, in waste,
may be had IN Chancery, though it may also be
had at law {; that matter of discount was not
matter of original Jurisdiction at law and that
II never had been lecided that ONE, who had
discount, should not have it in equity, unless he
had tailed at law but he admitted, that il the
rent had been actually paid to Ross, the plaintiffs
misnt have been relieved at law, in writ of re.
plevin but that they could not in the present case,
as the payment was on account of other matters,
Tor the statute concerning discounts did not en-
brace the case of tenant plaintiff in replevin,
and that court of equity should not be so strict
| IN conhning a party to relief at law, in writ of
replevn, as in other actions because, ifhe should
be cast, he would have to pay double the amount
II the rent in arrear :" and according to the
fashion OF the times, Mr.. Hay referred the court
TO several English authorities, s. TO few home de-
cisions. But as his whole argument went to prove
that the plaintiffs could not have been relieved by
writ OF repievn, evidence of the discount,
IN that kind of action, would have been improper,
shall contine myself to the examination of this
point principally.
The whole case then, is reduced to this ques.
ton could the plaintiffs, in writ of repevin,
nave given evidence of the advancement of mo.
ney to Ross, while they were his tenants, which
overpaid the rem, that was due to him, before he
sold the lease hold premises to the defendants
Ii the plaintiffs could have given such evidence,
at law, they cannot, upon Mr. Hays own princi-
PIES be admitted now to come into equity, unless
the5 oring themselves within the rule as laid
down. To illustrate this point by example l
will suppose, that the defendants Hancock and
Ciiliat mad, instead of the distress which they
MADE Tor the rent, brought action of debt, as
the asslgneea OF Ross, might the plaintiff not in
tnis acton have proved their discounts against
nm, before notice Of the assignment, and must
they not have been allowed agreeably TO the sta
tute in the edition of the laws by Pleas and pace
p. 30. sect. 4. the answer, I apprehend, is Too
clear IN the affirmative, to be questioned i ask
then II their rights can be changed, because of
different form OF action and the answer is, TO
my mind, equally clear, that they cannot: for
take the law TO be, that the plaintiff in repeyin.
ana the defendant IN all other actions, may pie lad
As many several matters, whether ofiaw or fact
rs he shall think necessary for his defence ill., D.
on. sect. Az. have referred to this statute 10
prove, that the plaintiff in ,ebisvia, may do, what
a defendant IN ell othfy actions may in other
words +; that their rights are the same, without
regard 10 the form OF the action and by another
statute, IN what is called the old BODY of laws.
p. I49 and IN the 2. vol by Pleas. no sect l. the
ae/enaarf upon the trial of any suit, shall be at
liberty 10 make ali the discounts, he can, and IN.
on proof thereof, the same shall be allowed in
court put 1t was said, that this statute, did not
embrace the case OF tenant OF plai ntH i'm reple.
vin; but surely The equity of the statute does
out II II does not, may the defendants, Hancock
ana OIiliat, not be considered as the grantors of
tie rent, that was due to Ross, by the plaintiffs,
At the time OF the purchase of the defendants
Hancock and Giliiat, frem Ross of the leas,e hold
premises and IT 90, by another statute, Plea end
races edition p. l59 sect. II. no tenant WHO be.
lore nocc OF The grant, shall have paid the. rent
10 tue grantor, shall suffer any damage thereby
IL inns statute be applicable to the present case,
as apprehend 1t is,t would seem to be very clear
that II tbs plaintiffs had made Announcements 10
hoss, before he sold the lease hold premises, and
granted the rents thereof to the defendants
ftahcoGk and Ciiiias that the plaintiffs should
NOT suiier any damage thereby, whether those
'oVsncements were made on account of the rent,
or any other account as Ross could not place
Hancock and Gllllat in better situation than he
hiossl stood tor hold it to be very clear, that
ui a witt OF replevin between Ross and the plain
1'HS' evidence might have been given oftbe dis
counts and ofcourse, that they might have been
proved IN writ ofrepevin, between the plain.
ms ana H-ncock and Giiiat as Ross's grantors
OT assignees.
Ihis IS short view ofthe case before me- nc
presented under our own statutes, and think.
liiat they very clearly warrant the construction
WHICH nave given to them but it was said, by
lhr Hay IN his argument, that as in England. It
haa been held, that the statutes of set.o did not
extend to repleyin, the same rule should obt ain
here but, | think otherwise because. / dis.
approve Ut the reason given for it there--narneIy
'hat sTepievtn IS not action, but remedy
without suit, and like an action for a tort BI
| n. lol and Montg. on set-uff 13 And Mr.
Kenyon, the Chief justice said, that it was much
70 NC ianhented, tbat It had been so decided btu
.i'a' such was the law and in this were 7 n
juube IN TINS country, might concur with him
put as am not, shuD lay down different rule
mere snC AGAIN, statutes of SET off a, n ,,t