Morrison's ex'R. v. Hart
| Citation | 5 Ky. 4 |
| Parties | Morrison's executor <I>vs.</I> Hart. |
| Decision Date | 01 January 1810 |
| Court | Kentucky Court of Appeals |
THIS is a writ of error to a decree dismissing a bill in chancery, exhibited by the testator of the plaintiff to be relieved against a judgment at law in favor of the defendant, Hart, for two hundred and thirty pounds, and costs.
The question which first attracts the attention of the court is, whether the circumstances of this case warrant the interposition of a court of equity.
What particular shape the action at law assumed, cannot be ascertained with precision from the record in this case. It is, however, to be inferred, that the basis of the action was a wrongful withdrawal of an entry of a thousand acres of land from the surveyor's books, and the assignment of the warrant by Morrison to himself; and that the defence set up consisted of a general traverse or denial of the injury complained of.
The grounds for relief which are taken by the bill are, 1st. that the entry was withdrawn, and the assignment of the warrant made by Hart's agent; who, though possessing no regular written authority, yet being intrusted verbally by Hart with the transaction of his land business, was, by the prevailing custom of the country, authorised to effect the withdrawal and assignment complained of: and 2dly, that if the entry had remained, Hart would have saved but a small part of the land, being covered by prior or better entries, and the jury ought therefore to have apportioned the damages to the value of the land that would have been saved; instead of which, they have given the full amount of the value of the whole thousand acres.
Where matter of defence is purely legal, and the party neglects to avail himself of it at law, it would be contrary to the soundest maxims of policy to permit him afterwards to take advantage of it in equity. But if the defence be of such a nature that the party may avail himself of it either at law or in chancery, though he should fail to make it at law, he might nevertheless, resort to a court of equity, with the same propriety as a plaintiff, seeking a remedy for an injury of which a court of law and a court of equity have concurrent jurisdiction, may elect to which tribunal he will resort for relief. But, as in the latter case, when the election is once made, and a trial had in either of those courts, the party will be precluded for ever from resorting to the other; so, by a parity of...
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