third count charged the defendant with having caused the said William to be illegally arrested on a charge of swearing several finable oaths-that the said William had before that time been legally fined for swearing the same oathsthat the defendant knowing the premises caused him to be fined a second time, and to be imprisoned for the same offence by which he lost, &c.

Plea General Issue and Notice.

In support of the declaration the plaintiff gave in evidence a certified transcript from the docket of the defendant from which it appeared that William Robbins had been charged on oath before the defendant, as a justice of the peace, with having sworn two finable oaths, on which charge the said William was arrested, brought before the defendant, fined one dollar and cost of suit, and for non-payment of the fine was committed to prison.

B. Cook testified that he was a justice of the peace, that on the evening of the third of July, William Robbins, son of the plaintiff, swore two finable oaths in his presence, that he informed him at the time that he should take notice of it. That in the course of the evening he made an entry on his docket, that said Williams was fined fifty cents for swearing the said oaths.

On cross examination he stated that no process had issued and that no cost had been taxed. That after he had fined the said William, the constable came and took him on a warrant from justice Budd, and that he requested the constable to tell Esquire Budd what he had done.

J. Cook testified, that he heard William Robbins swear, and heard B. Cook tell him he would take notice of it. He saw the constable arrest young Robbins on the warrant from Budd-that he was called as a witness before Buddthat he proved the swearing of the oaths, and that he informed Budd, that B. Cook had fined Robbins before, for the same oaths. On cross-examination he stated that no transcript was produced from the docket of B. Cook, and that the defendant Budd had no knowledge of the fine imposed by Cook, but the verbal information given by the witness.

On this evidence the plaintiff rested, and the defendant moved for a non suit.

By the COURT.

The declaration charges that the defendant was a justice of the peace-that as such he issued a warrant against William Robbins, son of the plaintiff, for an alleged violation of the act for the prevention of certain immoral practices.That the said William had been previously fined for the same offence—that the defendant with a knowledge of that fact unlawfully fined him a second time, and caused him to be imprisoned, whereby the plaintiff lost the benefit of his labour. In support of the motion it is contended, that these facts have not been proved. The only averment tending to subject the defendant to his action is his knowledge that the party accused had been previously fined for the same offence. The declaration does not state the manner in which the defendant acquired that knowledge, but it appears from the testimony, that it was by a verbal message, sent by Justice Cook, which message the defendant very properly refused to receive as evidence. It was the duty of the accused, if he wished to avail himself of that defence, to do it by a certified transcript from the docket of the justice who had imposed his fine. Parol evidence of the fact was inadmissible. If the suit had been brought in a court of record, and the defendant had plead a former

conviction in bar, he could not have sustained that plea by parol testimony, but must have produced the record of the conviction. Although the pleadings before the justice are ore tenus, the rules of evidence are the same as in courts of record, and the defendant, acting as a judicial officer, was bound to require the best evidence in the power of the party, and to reject that which was inferior. The plaintiff not having shewn that such evidence was produced, has failed to prove the only fact on which he could hope to sustain his action-we therefore advise him to submit to a non suit.

Judgment of non suit.

2 HAMMOND, 18.

TOWNSEND v. ALEXANDER.

JUDGES PEASE AND BURNET.

1825.

Where a party seeking a specific performance of a contract ins'sts upon an unconscionable advantage, the court will dismiss his Bill.

The facts are these. The defendant contracted to sell to the complainant a house and lot in the town of Springborough, on the complainant's paying for the same two hundred and forty dollars in the following manner. Twenty dollars to be paid on a day named; one hundred dollars to be paid on a subsequent day; one hundred dollars to be paid by assigning notes on good men; and in discharge of the residue the complainant was to convey five unimproved lots in Springborough. The first and second instalments, amounting to one hundred and twenty dollars, were paid. In discharge of the third instalment the complain-ant offered to assign promissory notes on different individuals to the amount of one hundred dollars. The defendant objected to the sufficiency of a part of the notes, amounting to seventy-one dollars and forty cents, but was willing to receive the residue, amounting to twenty-three dollars and sixty cents. Complainant refused to assign a part without the whole. Defendant then instituted a suit before a justice of the peace, for the whole amount of the third instalment. The justice mistaking the extent of his power, gave judgment that the defendant in the suit before him, should pay the plaintiff the sum of seventy. one dollars and forty cents, being the amount of notes objected to, and ordered him to assign to the plaintiff the residue of the notes, to which no objection had been made, amounting to twenty-three dollars and sixty cents. The complainant refused to assign the notes, but offered to pay the seventy-one dollars and forty cents, and to execute a deed for the five lots in Springborough. The prayer of the bill is that the defendant may be decreed to convey the house and lot.

On the part of complainant it was contended that the recovery before the jus tice was a judicial determination of the amount due on the contract. That the order relating to the assignment of the notes was a nullity, and not obligatory; but if otherwise, that the defendant had his remedy. That this court cannot overhall the merits of that judgment, which was rendered in a suit, in which the entire claim of the defendant was exhibited.

By the COURT.

The facts in this case are not disputed. The contract is admitted, and also the performance by the complainant as far as it is alleged in the bill. The only point of controversy is whether the defendant shall lose twenty-three dollars and sixty cents, part of the third instalment, in consequence of the erroneous opinion of the magistrate, as to the kind of judgment or decree he was authorized to enter. It is evident, and in substance admitted by the complainant, that the third instalment of one hundred dollars, was wholly unpaid when suit was commenced before the justice, and that judgment was rendered for a less sum than was due, in consequence of a belief that the justice had power to compel an assignment of a part of the notes. Although it is not in the power of this court to interfere with the judgment of the magistrate, yet it is in their power to require the complainant to do equity, as the only condition on which they will render him their aid. We cannot shut our eyes on the fact, that the complainant is seeking an unjust advantage of the defendant, and that if the prayer of his bill should be granted, he will obtain the property at a less sum than he stipulated to pay. He may claim the advantage he has gained at law by refusing to assign the notes, or to pay more than the amount of the magistrate's judgment, but while he does so we will leave him to his remedy at law. Before he has a right to ask equity, he must do equity. He must come with clean hands, if he expects to obtain the aid of this court. As the case now stands, we are called on to decree him a title, under such circumstances as must forever prevent the defendant from obtaining a part of the consideration. The complainant does not pretend that the sum for which the magistrate directed notes to be assigned has been paid, and he still persists in his refusal to pay it. We have no alternative therefore but to dismiss his bill.

M'CARTY v. BURROWS.

JUDGES PEASE AND BURNET.

1825.

Where a matter of fact, properly a subject of defence at law, is not litigated at law, equity will not relieve.

The bill states, that defendant being about to go to New-Orleans, and having a sum of money on hand in current bank notes, for which he had no immediate use, proposed to lend them to complainant, to be refunded on his return from New Orleans. That the complainant took the bank notes, and gave his own promissory note for the amount-that after the defendant had returned, the complainant called on him, and told him that the notes did not answer his purpose that he could not pay his debts with them, and offered to return them—that defendant agreed to take them back, and give up the promissory note which he held-that complainant then gave him the bank notes, on which the defendant promised to destroy the promissory note, which was not at that time presentthat relying on the integrity of the defendant he took no receipt, and had no wit

ness by whom he could prove the payment-that defendant, instead of destroying the note, commenced an action on it, recovered judgment, and had sued out execution.

The prayer of the bill is for a perpetual injunction.

The answer admits the loan of the money-the promissory note-the judg ment and execution; but denies the repayment, and avers that the debt is just and that it is wholly unpaid.

Two witnesses were examined on the part of the complainant. The first testified, that he heard the defendant say he had received the bank notes from complainant, and had promised to destroy the promissory note. The second testified that he was present at a conversation between the parties, when the defendant made the same admission. On the part of defendant testimony was offered as to the general character of the first witness, and the cause was submitted.

By the COURT.

There is no ground on which this bill can be sustained. The credibility of the first witness is entirely destroyed. Independent of the proof as to his general character, he has equivocated, and told different stories at different times. His evidence therefore is entitled to no weight. The second witness contradicts one of the allegations of the bill, that complainant had no witness by whom he could prove the payment of the money.

The material averments of the bill are positively denied by the answer, which is responsive, and is not impeached.

The remedy of the complainant, admitting the truth of his allegations, was at law. The whole contest between the parties is a matter of fact, relating to the payment of a sum of money, of which the complainant might have availed himself in the action of the promissory note, and if the second witness testified truly, of which there is great doubt, McCarty knew by whom he could prove the confession of payment. But be this as it may, the case is not within the jurisdiction of this court. Putting the answer out of the question, the complainant has not presented a case that can be sustained. It might have been necessary for him to file a bill of recovery, pending the suit at law, but having submitted to a judgment in a case depending wholly on a contested fact, he cannot review the merits of that judgment in a court of chancery.

The injunction must be dissolved, and the bill dismissed.

WOOD ET AL. v. ARCHER.

JUDGES PEASE AND BURNET

1825.

When a party neglects to make a proper defence at law equity will not relieve.

The bill states, that after the complainants had taken out letters of administra. tion, an allowance of 195 dollars was made for the support of the widow and children of the intestate for one year, agreeably to the statute. That a contract was afterwards entered into, between the complainants and the widow, that she

should receive 39 dollars for her own support, and that they should receive the residue and support the children, which was done. That the defendant was ap pointed their guardian, and in that character commenced a suit against the complainants, before a justice of the peace. for the money received by them under the agreement aforesaid, and recovered a judgment; that the complainants then gave notice of an appeal, after which an agreement was entered into, that the complainants should relinquish their appeal, and the defendant should amicably and honestly settle the matter; but that after the time for presenting the appeal had expired, the defendant refused to settle.

The answer denies the material averments of the bill.

The cause having been submitted on bill and answer, the following points were decided by the court:

1. The claim of the complainants was a proper defence to the suit at law. 2. The promise to settle or relinquish the appeal, was made on a good consideration, and may be investigated in an action at law.

3. The bill does not present a case that could be sustained in equity, if the facts were all admitted; but as they are principally denied, and no evidence is offered, the injunction must be dissolved and the bill dismissed.

DUCKWALL ZIMMERMAN.

JUDGES PEASE AND BURNET.

1825.

Where a party neglects to make a proper defence at law, equity will not relieve.

The bill stated, that suit was commenced against the complainants on an instrument, purporting to be a note executed by Kitty Ann, now the wife of the complainant Duckwall, while a feme sole. That the defendants in the suit at law, believing that the plaintiffs must prove the execution of the note, did not attend, and that judgment was entered against them. They deny the execution of the note, and pray for a perpetual injunction.

The defendant demurred-the cause was submitted without argument.

By the COURT.

There is no ground on which this bill can be sustained. It does not contain one feature of a case proper for, or relievable in this court.

The injunction must be dissolved, and the bill dismissed.

WOOD v. PRATT ET AL.

JUDGES PEASE AND BURNET.

1825.

The bill states that the defendant, Davis, being a justice of the peace, entered a judgment on his docket against the complainant in favor of S. Pratt, for up