Alley v. Ledbetter, 16 N.C. 449, 1 Dev. Eq. 449 (1830)

June 1830 · Supreme Court of North Carolina

16 N.C. 449, 1 Dev. Eq. 449

John H. Alley et al. v. Richard Ledbetter.

From Rutherford

A bill, the allegations of which are directly denied by the answer, and supported by one witness only, without corroborating circumslan ces, will be dismissed.

After a failure at Laiv, the party cast cannot come into a Court of Equity, merely because the verdict is unjust ; unless the matters alleged in Equity do not constitute a defence at Law.

Where a discovery in aid of a defence at Law is sought from the conscience of the Defendant, it ought to be obtained pending the sural Law.

Discovery and relief are never given after a trial at Law, where the matter averred was available at Law, unless the party seeking it, avers and proves, that he was ignorant of the defence or evidence, at the time of the trial.

The Plaintiffs were the sureties of Frederick F Mletf. late Sheriff of Rutherford, and in their bill alleged, that the Sheriff having a fieri facias against the Defendant, had sold one of his negroes to satisfy it — that the sale of the slave produced the sum of S207 83, over and above the amount due upon the execution, which She Defendant then might have received of the Sheriff, but which he, then lent him upon his, tiie Sheriff’s, individua! responsibility.

That the Defendant had sued ihe Plaintiffs at Law, for the said sum of 8207 83, without joining the Slu t iff —that although they had heard of the lending by She Defendant to the Sheriff, they knew of no witness by whom the same could be proved on the trial at, Law — but that since the judgment in the action at Law, they had discovered a witness, by whom they could prove a loan of the surplus, over and above the amount due on the execution. The Plaintiffs, prayed an injunction, to restrain the Defendant from issuing execution upon his judgment.

The Defendant, by his answer, denied every allegation in the bill, as to his lending, or forbearing in any way, to Mley, flic Sheriff, the surplus in his hands, over and above the execution mentioned in the bill, and insisted that lie was needy, and liad constantly, but without effect,. urged its payment.

Gray Crowe, the only witness examined by the Plaint¡jys? as to ti)e main allegation in their bill, swore, that he was at the house of Frederick F. Mley, in September, 1820, when the Defendant came there, and asked Mley to pay him the surplus in his hands, over and above the amount of an execution, under which a negro of his, Ledbetter’s, was sold — that Alley produced and counted the money, and then asked Ledbetter for the loan of H ; upon which, Ledbetter immediately lent him the amount.

No Counsel appeared for the Plaintiffs.

Hogg, for the Defendant.

Ruffin, Judge.

— I think the bill ought to be dismissed, on two grounds. The one. is, that the answer directly and positively denies the loan to the Sheriff, and the contrary is proved by, only one witness, Gray Crowe. If there were nothing particular to be said of his deposition, it is the constant course of the Court to refuse a decree upon the testimony of a single witness, unsupported by circumstances, against the answer,, directly responsive to the bill. But it is almost impossible to believe the witness, without the contradiction. The tran-' suction deposed to is, to say the least of it, most extraordinary. That a needy man, whose negro had been sold under execution, and who had the surplus money offered to him, should loan it to the Sheriff, without taking any security therefor, and this after application made by him for the money, cannot readily be credited, without the testimony of more than one witness, uncorroborated in any manner.

But besides this, the Plaintiffs come too late here. They ought to have filed their bill of discovery, pending the suit at law. After a trial there, which they resisted upon the evidence in their power, they cannot come here for a new trial, merely because the verdict was unjust If the matters alleged be no defence at Law, that is a different: case ; for then the discovery would be of no avail. Bat if the. discovery now sought might have availed as a defence at Law (which is the ease here) then the only ex-cn-e for not proving it at Law, either by witnesses or by a discovery from the Defendant, is, that the fact was not then within the knowledge of the party. The Plaintiff" Isas no right to discovery and relief in this Court, when by asking the discovery here in due time, he might have had the relief at Law. f ,r that would he altogether changing the forum, by which facts are to be found in the ordinary jurisdiction of the Courts. A jury is primarily to pass upon legal defences ; and no transfer of the jurisdiction ought to he allowed, which does not arise from necessity. Here the Plaintiffs admit, they had heard of the loan before the trial at Law. Why then did they not seek a discovery ? Can any reason be given, except that: they wanted to find where the case pinched ?

This however, it may be said, applies only, where the bill seeks relief upon tire discovery in the Defendant’s answer solely — where the Plaintiff puts himself on the Defendant’s conscience, and not where the relief is prayed apon the strength of evidence newly discovered, in the latter case, the party relies upon his proof. I adroit the difference. But it will not help these Plaintiffs j because it docs not appear in the evidence, when they came to tire knowledge of what the witness knew. As I have just said, Equity does not interfere merely to prevent Injustice but only upon the ground, that the party had it not in his power' to have justice done him. He had that power, if he knew of the existence of the witness., and what he would swear. It is therefore, a material allegation, in every such bill, ihat the Plaintiff was ignorant, at the time of rh» trial at Law, of tire existence of the fact, or of the witness by whom he can how prove It. And like every other material allegation, it must he proved. This may he always done, at least as to fk? ■- purpose, by examining the witness as to the period of kis communicating to the party his knowledge of the fact, as well as by examining him as to the principal point. jjere nothing of the sort has been done. Crowe merely proves the loan by the Defendant, and does not say one word why he kept it secret during the suit at Law, nor when he told the Plaintiffs. For any thing we can know-, he was purposely kept back, lest a Rutherford jury might not th>nk fit to credit the very singular account he gives of the transaction.

Per Curiam.

— Let the bill be dismissed with costs.