ments subsequent to the settlement, or of any other matter which in equity and good conscience may be relied on. Ibid. 34. When a case can be completely decided between the parties, the circumstance that an interest exists in another person whom the process of the court cannot reach, will not prevent a decree on the merits. Marr's ex'r. v Southwick, et al. 2 P. 351. 35. When husband is administrator in right of his wife, and after a bill filed against them, the wife dies, it is not necessary to revive proceedings by a supplemental bill, charging him as executor de son tort upon such estate. Draughan v. French ad'mr. 4 P. 352. 36. When an original bill is sufficient, both as to allegations and parties to authorize a decree rendered, such decree will not be reversed because a party not material has been brought into court, or because an amended bill does not seek process against a party who has answered. Haly et al. v. Bennett, 5 P. 452. IV. Report and Decree. 37. Exceptions to report should be taken before the master or auditor ; they come too late when application is made for decree, in conformity with the report. Ad'mr Lewis v. Lewis, A. R. 35. 38. Decree may be made in vacation under order by consent for that pose. Glover v. Robinson, A. R 101: } purIbid. 39. Decree ordering sale of property in the hands of heirs, must specify and identify it. Gayle et al. v Singleton, 1 S, 566. 40, No decree can be rendered in favor of defendant, who answers merely, except for costs, If he desire relief against complainant, he must proceed by cross bill, Harris et al. v. Carter, ad'mr, 1 S. 233. 41. Where notes were fraudulently transferred to third persons, the proper decree in favor of a creditor against the fraudulent holder is for an account of the amounts received, and the proceeds of the notes themselves, but not for the nominal amount of them, on the supposition that they will be collected. Boorman et al, v Draughan, ex'r, 3 S, 243. 42. The decree cannot embrace a matter not charged in the bill, although warranted by the proof, Ibid. 43. Where a decree is taken to the supreme court and affirmed, the court below has the power to enforce and carry out the decree, as though it never had been in the supreme court. Simpson v, McLaughlin, 4 S, & P. 88. 44. The decree of chancery upon the facts of a case, are conclusive against all parties suing under the same facts afterwards. Mc Whorter v. Standefer, 2 P. 519. 45. Exceptions to report partake of the nature of special demurrer, and if report is erroneous, the party must particularly point out the error; when this is done, the facts not excepted to are admitted to be correct, not only as regards the principles, but as relates to the evidence on which they are founded. Darrington v. Borland, 2 P. 10. 46. Decree disposing of the main principles of a case directing an enquiry by a commissioner as to matters which require a report at a subsequent term, and containing no order for costs, is not such a decree as will sustain a writ of error. Garrard et al. v, Webb, 4 P. 73. 47. A judgment pro confesso will not authorise a decree without proof. Wilkins & Hall v. Wilkins, 4 P. 245. 48. A decree to be the foundation of an action at law, or to constitute a bar to a subsequent suit, must appear to have been rendered directly upon the same point, and between the same parties; and it is not sufficient that the matter was incidentally involved. Phelps, admr. v. Thompson, et ux. 2 S. & P. 369. V. Jurisdiction; Cases wherein Chancery will Interpose and Relieve. 49. When there is an adequate remedy at law, equity in general has no jurisdiction. Standefer v. Mc Whorter, 1 S. 532. 50. Courts of law and equity have concurrent jurisdiction on questions of penalty, and after an injunction at law upon the question, the only remaining ground for equity jurisdiction is for discovery. Brahan & Rose v. Pope & Pope, 1 S. 135. 51. The power given to county courts over estates of deceased persons does not entirely divest chancery of jurisdiction, particularly when a matter peculiar to chancery is involved, in which case it takes jurisdiction over the whole subject. Gayle et al v. Singleton, 1 S. 566. 52. When at law the defence would be doubtful or difficult, equity will take jurisdiction. Teague v. Russel & Moore, 2 S. 420. 53. A court of chancery can, no more than a court of law, compel a party to relinquish a security he has fairly acquired, or change it for another. Equity cannot substitute one person as defendant in a judgment for another. Mc Broom v. Sommerville, 2 S. 515. 54. When money is paid on a contract which is rescinded, or alleged to be fraudulent, an action at law lies to recover it back; and in the absence of special allegations or failure of proof, or other matter of equitable relief, chancery has no jurisdiction, Sadler, et al. v. Robinson's heirs, 2 S. 520. 55. Chancery has not the power absolutely to annul or rescind contracts in the administration of justice, but is bound by rules and precedents. Ibid. 56. When a defence, which could have been made at law, is not made, it is waived, and cannot afterwards be a ground for a bill in equity. Herbert Kyle Hobbs & Fennell } See McGrew v. Tombecbee Bank, 5 P. 547. 57. Equity will not relieve against a judgment at law, when the defence could have been made at law, and the remedy was unembarrassed. Moore v. Deal 3 S, 155. 58. And it is no ground for the relief that the pleas at law were rejected, as the remedy in such case was to reverse the decision. Ibid. 59. Prevention of litigation under some circumstances forms a subject of this jurisdiction: as where one person has a right which various persons may litigate in several actions. Morgan et al. v, Morgan et al. 3 S. 383. čo. When defendants remedy is adequate at law, but at the time of trial is not well ascertained, the jurisdiction of equity is maintainable. Bynum & Lewis v. Sledge, 1 S. & P. 135. 61. The statute in relation to lost notes does not deprive chancery of its jurisdiction. Tindall v. Childress & May, 2 S. & P. 250. 62. The statute having authorized the trial of sums under $50 to be had on the justice and equity of the case; chancery will not interfere in such cases where justice does not obviously demand it, and even then in cases only exceeding $20, Williams et al. v. Berry, 2 S. & P. 284. 63, Whether chancery will entertain jurisdiction of the claim of a distributee when the county court has made a distinct and final order of distribution, awarding to each distributee the amount of his distributive part,-Quere. Cherry & Bell v, Belcher, 5 S. & P. 133. 64. But the mere ascertainment by the county court of the sums remaining in the hands of representatives, even if the settlement be final, will not divest chancery of jurisdiction when applied to by distributee (especially a feme covert) to compel payment of a portion to which he or she is entitled, Ibid. 65, In cases of trust, fraud, accident or mistake, chancery is competent to afford relief; and also when there has been a breach of trust, or fraud committed by setting up a conveyance as an absolute sale, in violation of a parol agreement that it should operate only as a mortgage, notwithstanding the answer positively deny the parol agreement-if sufficiently proved and the mortgagor had not participated in the fraudulent intent, English v. Lane, 1 P. 328. 66. Gross inadequacy of price may imply fraud, and is a circumstance proper to be taken into consideration, with other facts, to determine the intention of the parties, and the true character and object of the contract. Ibid. 67. Fraud need not be charged expressly, but may arise from the general facts and allegations of the bill. Ibid. 68. When the allegations of a bill were, that a slave had been conveyed with an agreement of repurchase and the conveyance was on the face absolute (the subscribing witness not produced or his absence accounted for) and there was no testimony rebutting the implicit denial of a defeasance by the answer, and a lapse of twenty-six years had ensued, without excuse for delay, Chancery will not disturb the sale. Hatfield v. Montgomery, et al. 2 P. 58. 69. Where courts of law and equity have concurrent jurisdiction and a defendant elects to defend at law and fails, he will not be permitted afterwards to apply to chancery, unless such failure has resulted from unavoidable accident. Thomas & Harris v. Hearn, 2, P. 262. 70. The refusal of a common law court to grant a new trial, when all the facts were properly cognizable, is no ground for relief in Chancery. Haughy v. Strang, 2 P. 177. VI. As to Co-Partnerships; Sickness of Counsel; Equitable Fund; Mistake of Law, and Infancy. 71. It is competent for one partner in a bill filed against his co-partner to compel a settlement of partnership accounts to join with his own claim those of a deceased co-partner, the complainant being his administrator. McLauglin v. Simpson, 3 S. & P. 85. 72. Under some circumstances the sickness of counsel and consequent ability to attend court may entitle a party to relief in equity. McBroom v. Sommerville, 2 S. 515. in 73. Chancery will lend its aid to a creditor to pursue an equitable fund, for the satisfaction of his debt, provided he cannot obtain it at law; and when such creditor, by his superior diligence, has subjected such fund, he will be entitled to retain it exclusively towards the payment of his debt, and the first creditor who applies to a court of Chancery, will be the first preferred. Lucas, et al, v. Atwood, 2 S. 378. 74. A party, under mistake as to the law of his contract, voluntarily makes payment, equity will not decree restitution. Jones v. Watkins, and twelve other cases, 1 S. 81. 75. Minors, defendants in Chancery, having been admitted to make a full defence by their general guardian; the Revising Court will consider the sanction given to such mode of defence as equivalent to an appointment of a guardian, ad litem. Cato v. Easley, 2 S. 214. VII. Relief against Judgments at Law; and in Cases where parties have or may have had defence at law. 76. Chancery will not relieve against a judgment obtained against a firm, upon an acceptance of service by one, where there is no fraud or collusion. Morgan v. Scott & Click, A. R. 82. 77. Equity will not protect a defendant in execution, who pays to the plaintiff after notice of assignment of judgment to another. Holland, et al. v. Dale, A. R. 265. 78. If party submit to an erroneous judgment at law, until a writ of error is barred by statute; equity will not open the judgment at law. Jones v. Watkins, 1 S. 81. 79. When a note is given in compromise, and to satisfy a judgment for a doubtful claim, with a knowledge of the facts, the legality of the contract and judgment will not be inquired into. Standifer v. McWhorter, 1 S. 532. 80. Chancery will relieve a sheriff when judgment has been obtained against him, for failing to return an execution, three days before a court, and failing to make a defence at law, having shown that it was not in his power to attend court, in order to resist the rule against him. Roberts & Baule v. Henry, 2 S. 42. 81. Chancery will not relieve against a judgment, founded upón a record of recovery from a sister state, when there has been no personal service in such state, for this may have been plead at law. Ibid. Lucas v. Bank of Darien, 2 S. 280. 82. Nor against a judgment at law, for mere technical defects on the proceedings. 83. And after a recovery at law, Chancery will not, in such case, order it to be cancelled or surrendered. Moore v. Deal, 3 S. 155. 84. Where A, the complainant, charged that he bought of B, a slave; paid part of the purchase-money and had given his note for the balance; that B had warranted the sale to be sound: that the slave was unsound, and of no value: and, that he believed, B knew it; that B resided out of the State, so that he could not tender the slave back to him; and that B had assigned the note to C, who had obtained payment thereon. Held that Chancery could exercise no jurisdiction over said judgment. McMillan v. Pigg & Marr, 3 S. 165. 85. Chancery will not relieve against a judgment at law, and an affirmance upon certificate. When the plaintiff in error, states that he was prevented from prosecuting his writ of error, by a contract with defendant in error, for a settlement of the case, when there appeared to be no consideration for such contract. Smith v. Miller, 3 S. 280. 86. Where a party neglects, in a suit at law, to take advantage of an entire failure of consideration, then within his knowledge, he will not after wards be permitted to obtain relief in Chancery. Irbel v. Morris & Bell, 1 S. 107. 87. Nor will a neglect to avail himself of a continuance or new trial,when he could have done so, form any ground for relief in Chancery. Naylor v. Phillips, 2 S. & P. 58. 88. Nor will an omission to define the interest of the plaintiff in the estate, whereby plaintiff recovers more than he was entitled to. But, otherwise, if it appear that the judgment at law, was properly defended-semble. McGowan et al, v. "Young, 2 S & P. 160. 89. Nor will Chancery interpose against a judgment at law, when one creditor has, by superior diligence, acquired a priority; at any rate, when there has been actual or constructive notice, and the party has omitted to avail himself of the opportunity of securing his debt. Burdine, Exr. v. Maltbie, 3 S. P. 417. 90. Chancery will not subject the personal estate (which cannot be reached by execution at law) to the payment of a creditor's demand, unless such creditor, has obtained a judgment against the debtor; and an execution has been returned nulla bona. Morgan, Exr. v. Crabb, 3 P. 470. 91. When a party who has a bond for title elects to proceed at law, equity will not interpose to compel the vendee to accept a conveyance: the vendor showing no excuse, by proof, for the failure to comply with his contract, anterior to the breach of it. Haynes v. Farley, Exr, & Bell, 4, P. 528. 93. And it seems that the retention of possession by the vendee after action, brought for the breach of the bond, would not amount to part performance of the contract so as to preclude an action at law for damages. Ibid. 94. To entitle a party to relief in equity against a judgment at law, it is not sufficient to show that the judgment is inequitable-but the party must show that he has used reasonable diligence to make his defence, before the proper forum. Mock v. Cundiff, 6 P. 24. 95. And in such case, the application to the Court of Chancery, must distinctly set forth and prove the matter relied on-so as to show positively and clearly, that the accident or fraud relied on, is entirely unmixed with any negligence on the part of complainant. French v. Garner, et al, 7 P. 549. 96. The rule allowing parties to go into equity after trials at common law are of great strictness and inflexibility; and, therefore, when relief was sought against a judgment at law on account of sickness on the part of defendant and his witness, but the name of the witness was not disclosed and the precise facts he could establish; and it was not stated that other facts necessary to be proved, could have been established if the witness had been present, or that, complainant could not have obtained a new trial at law-the bill will not obtain relief. lbid. VIII. Injunction. 97. When an injunction has been granted on bill, with affidavits annexed, and the answer denies the bill and affidavits, the injunction will be dissolved. Withers, Exr. v. Dickeys, 1 S. 190. 98. An injunction will not be granted to restrain register of land office, at Courtland, from receiving entries or issuing certificates to certain persons having pre-emption rights, as this was a matter of favor which had been left to the sole control of the commissioner. Bell, et al v. Payne & Williams, 2 S. 413. |