Faulkner's Administratrix v. Harwood

Harwood having a claim to several slaves then in litigation, sold this claim to' Royston, for 187/. 10s., for which sum Royston executed his bond to him. Royston sold his bargain to Faulkner; and Faulkner, by a contract with Harwood, gave him several notes or orders, &e. in exchange for Royston’s bond. Among these, was the order'-of Mrs. Steptoe for $210 58 cents, which had been given to’ Gaines an Attorney, to sue on, and which was transferred to Harwood by an assignment on the receipt of Gaines. Faulknef afterwards contesting the right of Harwood to the money due on this order, received the amount of it himself; arid having died, Harwood sued his Administratrix in assumpsit for the amount, and recovered Judgment.

The bill was filed to injoin this Judgment, on the ground that Harwood sold, not his right and interest to the slaves merely, but such a share of the slaves themselves, and warranted that share: that this order was given in part satisfaction of that share: that the share has turned out to be nought, the suit having been decided against Harwood’s title; and therefore, Harwood has no claim upon the order; that this would have been proved to the Jury on the trial at Law, if the exhibits B. and Z). had been in the knowledge or power of the Plaintiff, at the time of trial; but, that these papers had been put by Faulkner into the hands of Hoomes, an Attorney, who died before the suit was .tried; and that these documents had been but lately found among his papers. The bill asks an Injunction, but does not designate the further and final relief expected.

If the Court ought to interfere at aíl, I presume it must be to grant a new trial, as it is a matter wholly at Law. But, the first question is, as to the jurisdiction.

It is a fundamental principle in Equity, that if a party will sufier a Judgment to pass against him, through neglect, he cannot have relief in Equity, for a matter of which he might have availed himself at Law. Lee & ux. v. Boles, 1 Ch. Cas. 95; Williams v. Lee, 3 Atk. 233. In this last case, Lord Hardwicks lays it down, that it must appear that the Defendant was ignorant, at the time of trial, of the fact which renders the verdict contrary to Equity.

In Bateman v. Willoe, 1 Sch. & Lefr. 201, Lord Redesdade says,' “The inattention of parties in a Court of Law, can scarcely be made the subject for interference in a Court of Equity. There may *126be cases cognizable at Law, and also in Equity, and of which, cognizance cannot be effectually taken at Law, and therefore Equity-does sometimes interfere; as in cases of complicated accounts, where the party has not made defence, because it was impossible for him to do it effectually at Law. So, where a verdict has been obtained by fraud, or where a party has possessed himself improperly of something, by means .of which he has an unconscientious ad;* at Law, which Equity will either put out of the way or restrain him from using. But, without circumstances of that kind, I do not know that Equity ever does interfere to grant a new-trial of a matter, which has already been discussed in a Court of Law, and over which the Court of Law had full jurisdiction.” He adds, “A bill for a new trial, is watched by Equity with extreme jealousy. It must see that injustice has been done, not merely through the inattention of the parties; but some such reasons as those I have mentioned, must exist. ”

Cases might be multiplied beyond number, to show that this is the settled doctrine. This question has been often decided also In this Court; and though sometimes with a little more latitude than may seem to accord with the true practice, yet generally, and particularly in the later cases, in conformity with the decisions I have quoted. I would particularly refer to the case of Oswald, Denniston & Co. v. Tyler, 4 Rand. 19, where tho subject is ably discussed and placed by the majority of’the Court, on the true ground. That is not a binding authority, but it has my entire approbation; and I trust we shall not depart from the course there laid down. There is nothing more difficult than to keep this encroaching jurisdiction within due limits. When a case seems to address itself strongly to our justice, wo are too apt to yield to the particular call, without considering its effect upon the general rule. Now, Ictus apply this rule to the facts in this case. Does it appear that the documents B. and D. were out of the knowledge and power of the Plaintiff at the trial at Law? She states, that they were found hut lately among the papers of Hoomes, who died before the trial. The answer puts heron the proof of this, by the allegation, “that it was extremely improbable, that a defence at Law was prevented by any such cause,” and that “ a small degree of industry and attention would easily have removed all difficulties on that head.” Surely after this, she ought to have proved the fact. It was said, that she was an Administratrix, and might well be supposed ignorant of the facts and for her defence at Law. This may he admitted; but surely, it docs not dispense with some proof before us, to justify the setti ng aside a verdict and Judgment at Law. *128If the pipers were placed in the possesion oi lloomes, the person who found them after his death, might have given evidence of that fact. As it stands, there is certainly no such faet in the cause; no evidence that the papers were not perfectly within the power of the Administratrix. It will not be said, that her statement in the bill is evidence. If so, the rule would be a nullity. Every one would stale enough to give Equity jurisdiction. But here, the answer puts her,on the proof. If it ought not to be produced in this case, it would be difficult to state one whqre it would be necessary. Though an Administratrix, as she has' stated the faet in her bill, she might prove it, if the proof existed. The absence of such proof takes away all ground of jurisdiction.

But, another ground to support the jurisdiction is taken. It is said, that this is a Bill of Discovery;. and that this is founded on that part of the bill, where the Plaintiff charges; that the consideration of the assignment of the order, was the price of the slaves sold by Harwood to Eoyslon, and by him to Faulkner; which she toes tillable to prove in a Court óf Lew, and still may be unable to adduce positive evidence of it, without a discovery from the Defendant; and in the close of her hill, she call's upon him to answer • as to this charge.

If there is any thing in authority, this .position is wholly untenable. The objection to it rests on the same ground with that just” discussed, that if a party suffers a Judgment to pass against him, through neglect, he will not get relief in Equity for a matter, of which, with due diligence, he might have availed himsell at Law. Now, the Administratrix no where states, that she did not, before the trial, discover, that the assignment of the order, and the purchase'of the slaves, were connected. It is' clear, indeed from her bill, that she was aware of that fact, while tlie case was pending at Law; and the exhibit C, forming apart of the Law Record, shows that the fact was attempted to be used at the trial. If, then, her evidence to establish it was defective, she ought, at once, while the action was pending, to have filed her Bill of Discovery, to .enable her to defend herself at Law. This, is the settled practice. Speaking of a Bill of Discovery, Lord Redesdaee says, Mitf. 52, “ This bill is commonly used in aid of the jurisdiction of some other Court.; as to enable the Plaintiff to prosecuté or defend an action at Law,” &e. And the bill must be filed as soon as the party discovers the necessity of appealing to the conscience of the adversary. Equity will not suffer him to spin out litigation, take the chance of a Jury, and failing there, file liis hill for a discovery. Leicester v. Parry, 1 Bro. Ch. Cas. 305. A plea that a Writ of Right had been *129tried and determined against the Plaintiff, was held a good plea to a bill for discovery of matter relative to the title. See also Duncan v. Lyon, 3 Johns. Ch. Rep. 351; Ibid. 395; Thompson v. Berry, 6 Johns. Ch. Rep. 479, where the subject is very well treated.

In the case before us, then, it is a full and decisive answer to the Bill of Discovery, that it is after verdict, and no reason shown why an earlier application was not made. There is no hardship in this rule. It is only saying, that a party shall use ordinary diligence, shall seek a discovery as socyi as he ascertains that he wants it. But, the contrary practice would be fraught with much mischief. Where the application is in due time, the effect is only a suspension of the proceeding at Law till the discovery is had; and then, the case proceeds to Judgment in the proper forum, and the facts are tried by a Jury. But, if you depart from the rule, you encourage negligence, protract litigation, harass and exhaust the parties, and draw within the jurisdiction of Equity, the general review of trials at Law. Upon both grounds, then, respecting jurisdiction, I am strongly opposed to the bill; and as jurisdiction precedes discretion, it would seem unnecessary to go further. But, as the question was much discussed, I will briefly state what would be my view of the contracts, if the exhibits B. and D. are considered in connection with exhibit C.

. B. is the first contract, made 10th of January, 1811. It is drawn very obscurely. The commencement looks like a mortgage; but, the latter part shows distinctly, that it was a sale; whether of the' interest; or the share of Harwood, is by no means clear. There are expressions which look each way. But, as I deem this point very immaterial, I shall not further consider it.

. Take it. that it was a sale of the share; it will be denied by nobody, that parties may modify or abrogate their contracts; and that a subsequent agreement about the same subject, does change the former, so far as it differs from it. In other words, that the last is the agreement, and the only agreement. On the 4th of March, 1811, not two months after the first contract, the parties made a second so clearly expressed, that it seems to me beyond the reach of doubt. By it, Harwood sells to Boyston all his right, title, claim, and interest, to seven 'negroes, (who are named) and stated that he claimed under the Wills of his father and a Mr. Orrell; which right, title, claim, and interest, he goes on to warrant. Now, if there can be a contract so drawn as to express a sale of the right and interest of the party to a subject, without a sale of the subject itself, it seems to me, that this contract is so expressed; and this, I thought, was acknowledged in the argument, but for the warranty. It was asked *130however, “how will you reconcile the warranty,, to a sale of the interest only.” I reply, the clause of warranty-can never be resorted to, to ascertain the thing or the interest sold. That is by no means its function. These must be gathered from the premises, .the weirds expressing what is bought and sold. These govern the war-a man never warrants more than ho has sold. then, it is expressly stated, that Harwood sells his right, ti-tie and interest, how could he warrant more? But, the warranty is as express as the sale. Ho warrants his right, title and interest. If you ask me, to what such a warranty amounts? I answer, to very little that I can see; certainly (I think) to no more than this, that he has done nothing, and will dp nothing, to affect his right, title and interest, such as it existed under the Wills. It seems to me stills more strange, to resort, for explanation of this contract, to the former'one; especially when this has no reference at all to that. It often happens, that parties, by a subsequent writing, explain a former contract. Tiiis is the natural flow of the stream. But to resort to a former contract, and by it, tq change the clear meaning of a later one, would be to turn the current back upon its source. That Roysion understood the contract as a sale of Harwood’s interest only, is further evidenced by his endorsement on exhibit C. With respect to the slave Daniel, who is stated by the contract to be in Ball’s possession, he says in October, Í811, “ I have this day conveyed to George Ball, and to him relinquished all my interest in said slave,” &c. Here we see a conveyance of his interest only. Then his assignment to Faulkner, ‘:1 do hereby assign all my right, title and interest in and to the within mentioned slaves, to Thomas Faulkner and his heirs,” &c. Now, it would hardly be contended, that Faulkner could have recourse to Roysion, in case the claim turned out bad; and yet Royston meant (no doubt) to sell as he bought, to sell his bargain. If Faulkner eould have no recourse to Royston, it would seem strange to say he could -have an Equity against Harwood, to stop the money on the order he had assigned him, when this assignment took place, notin a trade about the slaves at'all, but in the purchase of the bond of Roysion to Harwood. This fact is stated in the answer, and proved by two witnesses, Thrift and Newcomb; who further say, that Faulkner told them he had bought of Royston, Hanoood’s claim- or right in the slaves.

But it is said, that exhibit D. shows the meaning of the par- . „n ties in these contracts. This bears date November, 1811, af- " ter the contract by which Faulkner had gotten of Harwood, Royston’s bond, in exchange for various orders, &c. “I do hereby relinquish all my right, title and interest, in, certain con*132veyed and sold by me to C. Roysion, who sold and conveyed the same to Thomas Faulkner. I sold to Roysion my right to only one half that property,” &c. stating, that he after discovered that he had a right to two thirds, and had that day received satisfaction of Faulkner for the two thirds. This paper was intended, it seems to me, merely to sell the additional claim, and acknowledge satisfaction; and not, in the slightest degree, to change the nature of the former contract. Where it refers to that contract, it is mere recital; “ negroes conveyed and sold by me to Roysion, who sold and conveyed to Faulkner.” But, how sold and conveyed? Why, as by the contract is declared. But we see, that when he relinquishes, it is still his right, title and interest; and when he speaks of his sale to Royston, he says, “ I sold my right to one half;” always clearly evincing, that it was his claim, his right, his interest, whatever . that might be, that he meant to sell. All this, it seems to me, would-be the natural course of such a trade. All the parties knew, that the slaves were in litigation. They were, of necessity, a subject for speculation. They might be something or nothing, as the suifshould eventuate. Any one who wished to speculate, would en-quire into the title, and regulate his bids accordingly. In all such, cases, the party weighs the chance of gain, against the hazard of loss. He makes his bargain with his eyes open, and he has no shadow of Equity to be relieved from loss, when it falls on him:

My opinion, therefore, clearly is, that 1st, the party has no right to be heard in and it is on this that I choose to place my opinion; but 2ndly, if the party were received, I think he shows no case for relief; and therefore, that the Decree of the Chancellor be affirmed.

I would have been strongly inclined to grant relief in this case, had the Appellant proved the two important matters stated in her bill, to wit: the discovery of the papers amongst those of Hoomes, after the trial, and the failure of the consideration of the assignments on which the suit at Law was founded. The answer, by doubting the truth of the first, and stating that it was extremely improbable, ' put the Appellant on the proof of it, which she has failed to adduce. The bill does not state, in what manner the consideration failed; whether because the Appellee never had any just claim to the slaves, and that so the suit was decided against him; or, because he had sold ihem previous to the sale under which the Appellant’s intestate claimed them.

*133The Appellee admits, that the suit was'decided against his title; but says, that an appeal was taken, which was dismissed for want of prosecution; which, being the fault of the Appellant’s intestate, for whose benefit it was taken, he ought not to be responsible; and he examines a witness to prove his title to them, as the dower slaves of his father’s widow. The record of the suit concerning these slaves, is not before us; nor is it even stated, what has become of it, except in the answer as aforesaid. It is not material, therefore, what my opinion might be, as to tho true meaning of the contract of sale, inasmuch as, for these reasons, I am obliged to affirm the Decree of the Chancellor.

After a trial at Law, new trials should not be by a Court of Equity, merely because injustice may havé been done at Law. A to entitle himself to a new trial, must show that he has been guilty of no laches: that he has done every thing that could be reasonably required of him, to obtain relief at Law. Without such excuse, which is to be judged of according to the cir-stances of the case, be cannot get relief in a Court of Equity. It does not appear, that the documents ZJ- and D. Were out of the power of tire Defendant, at the time of the trial of the suit at Law; and being put on the truth" of that fact by the answer, some evidence of a matter so susceptible of proof ought to have been adduced, to entitle him to relief in Equity, Indeed, it is not probable, that as the document C. which belonged to the same transaction, was before the Jury, the documents B. and D. were not also in the power of the Plaintiff in Equity, if due diligence had been used to procure them.

As to the other ground of relief, a discovery from the Defendant, if at all expected by the Plaintiff, it was more-necessary in the absence of the documents B. and D., which are all now in the record, than since the trial at Law; and although I would not, in every case, limit the right of a party to a Bill of Discovery,' to the pendency of the suit at Law, I think, in this case, there has been evident negligence in the Plaintiff, in not filing her bill, pending the suit at Law, if any discovery was expected from the answer of the Defendant.

In addition to this, I see nothing in the answer, which ought to change the verdict of the Jury. On neither ground, do I think that there is any error in the Decree, and am therefore for affirming it

Decree affirmed. *