Opinion
11-06-1817
Winn v. Bowles
William Hay, Jr. for the appellant. Wirt contra.
This was a suit in the Superior Court of Chancery for the Richmond District, brought by Thomas Winn, junr. against Benjamin Bowles, administrator of Mary Bowles, deceased, and Augustine Bowles, defendants; --for an account of the assets of the said decedent, and to recover (among other claims) the principal and interest of a Bond for 481. 1s. 3d., executed by the said Mary Bowles, in her life time, to John Winn executor of Hezekiah Winn deceased, and by the said executor assigned to the plaintiff.
The cause being heard, on the Bill, Answers and Exhibits, an account was directed to be taken, of Benjamin Bowles's administration of the estate of Mary Bowles; --in pursuance of which order, a Commissioner made two statements; one shewing a balance of $ 248 34; the other, of $ 103 34; due the estate, the 1st of January 1812. --But, on a farther hearing, the Bill was dismissed with Costs; from which Decree the plaintiff appealed.
Decree reversed, with costs, and the cause remanded.
William Hay, Jr. for the appellant. The Chancellor, instead of dismissing the Bill, should have adopted one or the other of the Commissioner's statements, both of which shewed assets in the defendant's hands. The first statement ought to have been preferred, for the reasons given by the Commissioner.
The plaintiff was not bound to go into a Court of law, in the first place; for Equity has concurrent jurisdiction in the administration of legal assets. The origin of this jurisdiction is not material, if it be established by precedents; --but it's origin will shew that the creditor is let into the Court of Chancery in the first instance. The practice, originally, was to file a Bill for discovery only, of assets; but, as that could not be had without an account, the Court proceeded to direct the account; and, (to prevent multiplicity of suits,) went on to make a complete decree, giving the party his debt likewise. So firmly settled is this jurisdiction, that, when once a decree quod computet is made, the Court will not permit a creditor to proceed at law.
Jesus College v. Bloome, 3 Atk. 263; Alexander v. Alexander, 2 Ch. cases, 37, 11 Viner 243; Morrice v. Bank of England, Cases Temp. Talbot, 220.
Largan v. Bowen, 1 Sch. & Lef. 299; Wortley v. Birkhead, 2 Vezey, 571; Martin v. Martin, 1 Vezey, 211; Brooks v. Reynolds, 1 Bro. C. C. 183; Goate v. Fryer, 3 Bro. C. C. 23; Hardcastle v. Chettle, 4 Bro. C. C. 163.
Wirt contra. A simple action of debt on a Bond cannot be brought in equity. There is no averment in this Bill, of any deficiency of assets, or difficulty of getting at them. No proof is adduced, of any of the plaintiff's claims, except the bond. The cause was heard on bill and answer only, without replication.
Hay in reply. Upon examining the authorities, the Court will find they fully support my position. The jurisdiction of Courts of Equity has generally been obtained by usurpation upon the Courts of law. The case of Dower is an example. The Court of law can in that case give relief; --yet it is given in Equity.
In this case, the other claims in the Bill, (exclusive of the bond debt,) being proper for equitable jurisdiction, will draw to them the jurisdiction as to the bond debt also.
OPINION
Judge Roane pronounced the Court's opinion.
The objection to the jurisdiction of the Court of Chancery in this case is overruled, on this ground, (without deciding on any other,) that the pre-existing right of an assignee of a bond, to demand payment of the same in a Court of Equity, has not been merged, or impaired, by the statutory right, since given him, to sue at law, upon the assignment, in his own name; --but that the latter remedy is cumulative and additional to the former.
The Decree is therefore reversed, with costs, and the cause remanded to be proceeded in upon the reports returned in the cause.