1819.

FEBRUARY, their Judgment against him, and then meet him with the plea of fully administered. The records of the proceedings Armstrong in the action of Covenant and the Bill in Equity are and Wife made part of the Bill.

V.

Hickman.

To this Bill the defendants Morris and Davison, the securities of the Executrix, have demurred. The defendants William and Hannah have pleaded the Judgment at law, and the Decree in Equity:-they also rely on the Statute of Limitations. By way of Answer, they deny that the Contract of September 10th 1803, was made at the solicitation of the said Peter, but in the manner set forth in their answers to the former Bill of the plaintiff, to which they refer as part of this answer:— that, with respect to the bankruptcy of Morris, they knew nothing at the time of the contract, nor do they now know any thing, but what they have learnt from the Bill:-that, at the trial of the issues directed by the Court of Chancery, they believe it was in proof that, in 1803, Morris and Nicholson were considered insolvent, and their paper worth little or nothing; but they admit that, at that trial, there was no proof that Morris had been declared a bankrupt and discharged under the laws of the United States; and they insist that, unless it can be shewn, (which is not alledged) that Devietman knew of the bankruptcy, and concealed it from the plaintiff, it furnishes no ground of relief, or of evidence as to fraud in the Contract. They aver that the said Peter became possessed of the notes fairly; and they submit, that the question, whether a recovery on those notes was so barred, as that they did not come within the description contained in the agreement? has been already decided in the action of Covenant brought by the defendant Hannah against the plaintiff. count of the assets of the said Peter, and aver that they have paid out to his creditors more money than they have received, or expect ever to receive, from his estate. After presenting this view of the case, I will consider the points growing out of it.

They then give an ac

1st. Does the judgment in the action of Covenant, preclude us from enquiring into the bankruptcy of Mor

1819.

V.

ris? It is contended that it does; on this ground, that, FEBRUARY, by the articles of agreement, the delivery of Morris and Nicholson's Notes was a condition precedent to the pay- Armstrong ment for them; that, therefore, in the action of covenant and Wife brought to enforce such payment, it was necessary to Hickman. aver, and at the trial to prove, a delivery, or tender at least, of such notes; that the recovery in that action is conclusive evidence that this tender was made, of such notes as the Covenant required; which evidence can not be contradicted or impeached, while the verdict and judgment stand. It is certainly true, that a Verdict and Judgment, unreversed, shall be final between the parties; that the same point shall not be a second time litigated. But it must be the same point; the same case. If, in a trial at law, a party has been unable to bring his cause fairly and fully before that tribunal; if he was then ignorant of important facts, which afterwards came to his knowledge; it can not be supposed, that this imperfect trial should prevent him from bringing his new case before a Court of Equity. Our books are full of such cases. Ambler v. Wyld, 2 Wash. 36, Ross v. Pines, 3 Call 568, Cochran v. Street, 1 Wash. 79, Lee v. Foushee, cited 1 Call 553, Pickett v. Morris, 2 Wash. 255, and Branch v. Burnley, 1 Call 147, are all of this kind. In the last case, Judge ROANE, who was opposed to the opinion of the other Judges, and against relief, yet lays down the general doctrine thus:-"I hold it to be a "clearly established principle, that a Judgment of a "Court of common law, though erroneous, given on a "legal question, shall never be disturbed in equity, upon "grounds which were proper for the consideration of the "common law Courts, and which, therefore, we must 66 suppose such Court to have decided upon; unless the "applicant to the Court of Equity can shew some par❝ticular circumstances to have taken place, operating "as an impediment to his availing himself of those "grounds, upon the trial at law."

Again, in the same case, he says, "Far be it from me ❝to impeach the power of a Court of Equity to give relief against a Judgment at law. My position how

1819.

Armstrong and Wife

V.

Hickman.

99

FEBRUARY, " ever is, that, when such relief is granted, it is on the "ground of some unconscientious conduct, on the part "of the party enforcing that Judgment; or on the ground "of some vice in the judgment itself, arising from cir"cumstances, other than an erroneous opinion, in point of "law, of the Common law Court, in that particular "case. Here we find this distinguished Judge, while opposing the jurisdiction of Equity in the particular case, admitting that it may properly interfere where the applicant shews that there was some impediment to his availing himself, before the law Court, of the grounds stated in his Bill; or where the vice in the Judgment "arises from circumstances other than an erroneous "opinion in point of law." The new feature in his case, by which the plaintiff would support the jurisdic tion of this Court, is the bankruptcy of Morris, existing at the time of the contract, and affecting, as he contends, the negotiability of the notes, but of which he could not avail himself on the trial at law, because he was then, and for a long time afterwards, ignorant of the fact. The weight of this circumstance in the question of final relief, I shall discuss presently:-it is sufficient to say that I think it gives the case so far a new aspect, as to remove the verdict and judgment out of the way, and authorise this Court to take jurisdiction.

now,

The remarks on this point apply with equal force to the Bill in Chancery. That Bill sought relief on two grounds:-1st, fraud in the original contract, by misrepresenting the value of the notes, and by making the plaintiff drunk, and dealing with him in that situation:2dly, that the first contract was annulled by a second parol one. To ascertain the truth of these charges, the Chancellor directed issues at law, which were found against the plaintiff, and his Bill dismissed. It is admitted by the defendants that, at the trial of these issues, no evidence of the bankruptcy was given. That, indeed, formed no part of the Bill. Suppose A. were to enter into a Covenant with B., by which he engaged to deliver him, in one month, a sound healthy negro, and B. engaged to pay, on the delivery, $600:-A., at the proper time, tenders the slave:-B. refuses to receive him:-A.

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and Wife

V.

Upon trial, Hickman.

brings Covenant, and recovers the $600:-B. files a FEBRUARY, Bill for relief, stating that he was made drunk by A., and, in that condition, entered into the contract; also, Armstrong that the negro, instead of being sound, was affected by a disease which rendered him of no value. these facts are found against B., and his Bill is dismissed. By this time, he has discovered what he did not know before, that the slave, instead of belonging to A. was, at the time of the contract, and still continued, the property of D. Can it be supposed that the door of Equity would be closed against this new ground of relief, because the party had before sought to destroy the contract on ground which he could not support? Surely not.

The next point is the Statute of Limitations, on which the defendants rely. It will be recollected, that the Statute does not take in proceedings in Equity: it enumerates certain actions at law, and prescribes a time within which they shall be commenced; but it says nothing of bills in equity. Courts of Chancery have, however, adopted the provisions of the Statute, and apply them by analogy. For example, the Statute says, that "actions “of account, and upon the case, (other than accounts "between merchants,) and actions of debt upon any contract without specialty," shall be brought within five years and not after. If there should be a claim, which, at law, must have been prosecuted by one of these actions, but which particular circumstances rendered it proper to bring into Equity, that Court, if the Statute was relied on, would look to the nature of the claim, and apply the Statute, unless there were some feature in the case, which would render such application contrary to good conscience. What would be the effect of the Statute upon the case before us, according to this rule? The Bill is founded on an agreement evidenced by a sealed instrument. If the plaintiff had sued on it at law, what would have been his action? Covenant.-And our Statute has prescribed no period, within which an action of covenant must be brought. Courts of law, indeed, have laid it down as a general rule, that the lapse of twenty years,

V.

FEBRUARY, Without any step taken by the obligee, or acknowledg1819. ment by the obligor, shall raise a presumption of payArmstrong ment: and there is no doubt that Courts of Equity, after and Wife the lapse, even, of a much shorter time, would refuse Hickman. their aid, unless the party could shew such reasons for the delay, as would acquit him of the charge of negli gence. But this is not under the Statute: it flows from a rule, adopted by those Courts long anterior to the exis tence of that law, under which they have always refused their aid to stale demands, where a party has slept upon his right, and acquiesced for a length of time. See 3 Bro. ch. cases, 639.-In the case before us, there were only about ten years, from the date of the contract to the commencement of this suit: during almost the whole of this time, the claim was in litigation between the parties; for the judgment obtained by the defendants in the Court of law in 1807, was immediately injoined; and that injunction only dismissed in 1811. In 1813, this suit was brought; and the plaintiff states in his bill, and has proved, as well as a negative of that kind can be proved, that he did not become acquainted with the bankruptcy of Morris (the foundation of the present Bill,) 'till the fall of 1812. Nor do I know that his ignorance of this fact 'till so late a period, can be imputed as laches to him; for it took place in another State, at the distance of 4 or 500 miles, in the great commercial City of Philadelphia, where it might not excite much attention, as there were, probably, hundreds of similar cases, under the Bankrupt law. From this view, it seems to me, that the Court ought not to apply the Statute of Limitations to the case.

Having disposed of these points, we come to the merits. And here I will observe, that I rather think the Bill is unskilfully drawn in one particular; that is, the mode in which it seeks relief; by a performance of the contract on the part of the defendants. I am disposed to think it would have been better to have sought relief from the contract. As, however, the effect would be the same, whether the Court injoin the Judgment at law, or decree in favour of the plaintiff an equal sum, and set it off