not have been prepared with testimony to explain it. As it was not given by himself personally, but by his agent, it is probable he did not know of its existence.

In his account against Richmond, filed with the declaration, no charge is made for the five hundred dollars, and the order for three hundred dollars, received on his account from Chaplin. From the nature of the transaction, he could not have divined that such testimony would be offered, unless directly informed, and it could be no laches that he was unprepared to meet it. The defendant, in his answer, " denies that the complainant was taken by surprise by any charge exhibited by him in said cases, as all his charges were made out and pleaded by way of discount, so that the complainant could see how to answer them." This statement seems to have been made by mistake, as upon examining the record at law, no plea or notice of discount appears to have been filed. It is probable, that according to the usual liberal, or rather loose, practice of the bar, evidence to establish a set-off was admitted, without a formal plea or notice. Or, if a notice of discount were given, it may not have been such as to apprise the plaintiff of the character of this receipt. It was urged, in argument, that the sort of surprise which will entitle a party against whom a judgment at law has been obtained, to relief, must be such as to amount to fraud in the opposite party. This would be to confound the distinction between fraud and accident. The authority relied on, 1 Fonbl. 125, has relation to a different matter. The author speaks of parties being induced to enter into agreements by surprise. If a party will sign an agreement, without knowing what it contains, unless he be drawn in to do so by some fraudulent contrivance of the opposite party, he has no title to relief on the ground of snrprise. It is his folly and neglect. Some countenance might seem to be given to such an opinion by a dictum of Lord Hardwicke, in Williams v. Lee, 3 Atk. 223, that the cases for relief are where the plaintiff knows a fact to be otherwise than the jury find, and the defendant is ignorant, as where the defendant, after the trial, finds a receipt for the debt in his own possession.

Certainly, however, there have been many cases in which the court has relieved, though no fraud could be imputed to the plaintiff: Robinson v. Belt, 2 Vern. 146, and see Richards v. Symes, 2 Atk. 319. No case, I believe, lays down that the plaintiff must have been guilty of fraud to entitle the defendant to relief: see Hennell v. Kelland, 1 Eq. Cas. Abr. 377; Blackhall

v. Combs, 2 P. Wms. 70; Gainsborough v. Gifford, Id. 425. Perhaps it would be a safe rule to say that the transaction must be such as would have amounted to fraud, if the plaintiff had acted knowingly. In such a case it is unconscientious for him to avail himself of the verdict, after he comes to a true knowledge of the case. In the present case, if Richmond himself had been sued, and made the same use of the receipt, it would have been a covinous device suggestio falsi. He would have known for what purpose the receipt was given. The administrator, finding it among his papers, did not know. If he had known, he, too, would have been guilty of fraud.

It was further urged, that after the verdict, the complainant's intestate might have obtained his remedy at law. He might have given notice of a motion for a new trial, and the appeal court would have granted it on the evidence now produced. Accident or mistake is certainly a ground of jurisdiction in this court. In cases of this sort the court of chancery formerly exercised exclusive jurisdiction in relieving against verdicts or granting new trials at law. The courts of law have assumed greater latitude in granting new trials, and it is probable that one would have been granted on a showing of the evidence now produced. The rules of law on the subject seem not to be very perfectly settled. Perhaps the jurisdictions may be concurrent. Without expressing any opinion on this point, however, I think there is reason to conclude that the complainant's testator was not aware of the existence of the evidence now produced, till it was too late to give the notice of a motion for a new trial. The receipts given by Richmond to Mr. Chaplin, I suppose, were, of course, in Mr. Chaplin's possession. (This should have been more distinctly alleged and proved.) He may not have known that such receipts were ever given, and could not know that they were still in existence. Though parties are not entitled to relief, who have lost their remedy by laches, yet the court does not require the extremest possible diligence. A similar objection might have been made in several of the cases referred to. In the case of a party finding a receipt in his own possession, after verdict against him, it would seem that there must have been some defect of diligence. In the case of Bateman v. Willoe, 1 Sch. & Lef. 201, the court refused to relieve, where the party," by some mistake," had failed to give notice of a motion for a new trial, in due time. But there nothing appeared to show why the party had failed to make his defense on the first trial.

I am sensible that the exercise of the equity jurisdiction in cases of this sort, is liable to great abuse. It is perhaps not possible to define with the exactness which would be desirable, the rules by which the court proceeds. Yet the court can not refuse its interference in cases coming clearly within the reason of precedents of acknowledged authority.

I should at once direct a new trial at law, if the parties had intimated any wish for it. I will put it in the power of either of the parties, however, to try the matter anew at law, if they desire it; if not, it would perhaps occasion unnecessary delay and expense.

It is therefore ordered and decreed, if either party shall give notice to that effect, on or before the first of July next, that the said parties proceed to a new trial of the action of assumpsit brought by William M. Barnes against the defendant mentioned in the proceedings in this case, at the next sitting of the court of common pleas for Beaufort district; no objection to be taken to the want of proper parties to the record at law. If no such notice be given, it is ordered that it be referred to the commissioner of this court to report on the accounts of the parties, on which the judgment in the said action at law was rendered.

JURISDICTION OF EQUITY TO DIRECT NEW TRIAL AT LAW.-For an extended discussion of this subject, see the note to Oliver v. Pray, 19 Am. Dec. 603, 608, et seq. See, also, Hunt v. Boyier, Id. 116; Edwards v. Handley, 3 Id. 745; Deputy v. Tobias, 12 Id. 243; Ford v. Ford, Id. 587.

CASES

IN THE

SUPREME COURT

OF

TENNESSEE.

SHUTE V. HARDER.

[1 YERGER, 3.]

AN EXECUTION AT COMMON LAW OPERATED only on legal rights and titles, and not on equitable interests.

STAT. 29 CHAS. II., c. 3, sec. 10, and the Stat. 5 Geo. II., c. 7., sec. 4, extending the operation of the former to the colonies, are both in force in Tennessee.

AN EXECUTION by virtue of such statutes may be levied upon direct trusts raised by, or resulting trusts dependent upon, a conveyance, but not upon trusts covenanted to be raised, nor upon constructive trusts. PURCHASER'S INTEREST IN LAND covenanted to be conveyed to him by a bond for title, is not subject to the levy of an execution.

THE facts are stated in the opinion.

By Court, WHYTE, J. The bill states that on the sixth August, 1807, Jacob Garrison entered six hundred and forty acres of land (entry No. 48, on warrant No. 4179); that on the fourteenth day of the same month, in the same office, John Curtis entered two hundred acres within the bounds of the said six hundred and forty acres, and a grant issued on this two hundred acres to said Curtis; and Curtis conveyed this two hundred acres to Jacob Harder and his heirs. That said Garrison, for a valuable consideration, executed his bond, and therein covenanted to convey the six hundred and forty acres (No. 48) to Harder.

That complainant, Thomas Shute, in the name of Robert Thompson, entered three hundred and forty acres within the hounds of entry No. 48; that a caveat was filed to prevent Harder from obtaining a grant either in his own name, or Gar

rison's, or any other. That it was decided on the caveat that the entry of Garrison was entitled to the grant in preference to the entry of Thompson, and costs of caveat to be paid by Thompson; and that thereby the said Harder will obtain a grant on entry No. 48, unless prevented by injunction.

That the said Harder was entitled to the two hundred acres of Curtis, and the six hundred and forty acres of Garrison by virtue of the said covenant to convey to him, as aforesaid.

That one Reuben Huggins recovered a judgment against the said Jacob Harder at the January term, 1814, of the Williamson county court, for one hundred and twelve dollars and twelve cents, and nineteen dollars and six cents costs; that a fieri facias issued on said judgment, which was levied on said six hundred and forty acres (entry No. 48), and said six hundred and forty acres were sold as Harder's property by virtue of said levy, on the fifth of March, 1814, to Asa Shute. That Asa Shute has since then died intestate, and complainant Thomas is one of his heirs.

To this bill there is a demurrer, and the question presented for the opinion of this court is, whether the interest of Harder in entry No. 48, is subject to sale by execution.

Harder's interest in said entry is a bond to him from Garrison (the enterer) by which he, Garrison, covenants to convey said entry, No. 48, to the said Harder. Now what notice does a court of law take of this transaction? What right does it create in Harder if the land is not conveyed by the time stipulated? What is his remedy for this breach at law? The law gives a right to damages, and the action of covenant to ascertain and recover them, but nothing else; his right is purely personal, and does not attach on the land. A court of law, therefore, can give no judgment that can affect it directly in terms as a court of equity might; nor can it be done indirectly by an execution; for the law only notices legal interests, and such only can be taken in execution at common law, and I shall presently notice the alterations produced by statute.

So far the law would go in this case upon a breach, but the equity jurisdiction goes further; it looks at the substance of the transaction between the parties. It sees that the object of the contract between the parties was on the one hand to transfer, and on the other to acquire this land; that the bond or covenant was only secondary or auxiliary thereto, as evidencing the contract, and tending to enforce a compliance by the obligor. If such a case appears before it, after a proper investigation of