THIS was an appeal by Reily from a decree of the circuit court of the district of Columbia, which dismissed his bill in equity with costs.
The defendant, Beall, some time in the year 1789 or 1790 had brought suit in the name of Lamar, for the use of Beall, by Robert Smith, his attorney at law, against Reily, the appellant, upon a note for 400 dollars, and recovered judgment in the general court of Maryland.
The bill stated that during the pendency of that suit, the complainant Reily, supposing that Smith was fully authorized to receive payment of the debt in any manner he should think proper, sold him a tract of 4600 acres of land in the state of Georgia, for the sum of 1533 dollars, for the express purpose of discharging that debt and some others which Reily owed in Baltimore. That in settling with Smith for the purchase money of the land, the amount of that debt was deducted and left in the hands of Smith to be paid to Beall under a promise from Smith that he would have the entry made upon the records of the court that the debt was satisfied. And after deducting also the amount of other debts which Smith undertook to pay for Reily, Smith paid him the balance by a check on the bank, being about 17 dollars. That thus the matter rested until the year 1799 or 1800, when being called on by Beall for payment, Reily applied to Smith to know why the debt had not been paid, who replied that it had been delayed in consequence of a dispute between one John Lynn, to whom the note had been indorsed, and the said Beall as to which of them was entitled to the money; but that it had been settled by reference that Beall should have it; and that Reily might remain easy, for he should not be called on again for payment. That Reily informed Beall that he had paid the amount to Smith, and that Beall, had acknowledged to several persons that he was satisfied the fact was so, and had employed counsel to bring suit against Smith for the money. That Smith had charged Reily with the said debt in his books, and that Reily had seen the entry in Smith's own hand-writing, and prays that the book may be produced.
That after the said judgment was rendered, viz. on the 3d of January, 1800, the legislature of Maryland passed an insolvent law, in favour of Reily, and others, and on the 23d of December, 1800, he conveyed all his estate to a trustee agreeably to the law, for the use of all his creditors, and that on the 4th of April, 1801, the chancellor of Maryland granted him a certificate of discharge, (a copy of which is made part of the bill) whereby it was adjudged and ordered that he should be discharged from all debts, covenants, contracts, promises, and agreements due from or owing or contracted by him, before the aforesaid 23d day of December, 1800, provided that any property which he had acquired since the execution of the said deed, or should acquire by descent, or in his own right by bequest, devise, or in a course of distribution should be liable for the payment of his said debts. That a writ of scire facias having issued sometime in the year 1800, to revive the said judgment, Reily instructed his attorney at law to plead the said discharge in bar thereof, which he neglected to do, without any default on the part of Reily. That all the property he possessed was duly delivered up to the trustee at the time of executing the deed of trust, and that all the property now in his possession was a devise, or the proceeds of a devise to his wife. That execution having, upon the scire facias aforesaid, been awarded by the general court of Maryland, an exemplification of that judgment had been by the said Beall filed in the clerk's office of the circuit court of the district of Columbia, for the county of Alexandria, and execution issued thereon, with intent to levy the same upon the goods, and effects held by Reily, in the right of his wife, to stay which, and all other proceedings at law, the bill prayed an injunction, c.
Beall, in his answer, stated, that he had never received any part of the money either from Reily, or Smith, who, he admits, was his attorney, in the suit against Reily. — That Smith denied that Reily had ever paid him the money, and that Beall had no knowledge, otherwise than by the information of Reily, that the same had been so paid. But that some time after the original judgment was obtained against Reily, Smith told Beall that if he would make to him, the said Smith, a handsome discount upon the said judgment, he would pay him the money for the same, which Beall refused to do. He admits, that for some time he did believe, and had declared his belief, that Reily had paid the money to Smith, and under that impression had given instructions to an attorney to examine into the business, and bring suit against Smith, or Reily as he should judge best; but he never positively admitted the fact to be so, nor has he intimated such an opinion since he has seen Smith's answer. He does not admit that Reily had ever regularly and legally obtained the benefit of any insolvent law of Maryland, nor that he instructed his attorney to plead his discharge — but that if he did, the attorney was able to pay any damages which Reily might sustain by his negligence. That the plea would be a good plea at law, and therefore the complainant could not resort to equity for that benefit which he had lost by his negligence. He admits that it appears by the proceedings that the deed from Reiley to his trustee under the insolvent law for the benefit of his creditors was dated on the 23d of December, 1800, and his discharge on the 4th of April, 1801, during all which time Reily lived either in the city of Washington, or town of Alexandria, and contends that as the court below had determined that the jurisdiction of Maryland and Virginia over the ceded territory ceased on the 1st Monday of December, 1800, the legislature or chancellor of Maryland had no power to pass such law, or give such discharge to the said Reily. He does not admit that the property now held by Reily is held in right of his wife.
The answer of the defendant, Smith, admits that as attorney for Beall he brought the suit against Reily, and that he purchased of him, as he then imagined, a certain parcel of land, consisting of 4600 acres, represented by Reily to be in the state of Georgia, at the price of two shillings and six pence current money of Maryland per acre, amounting for the whole to the sum of 1533 dollars and 33 cents: but denies that in making that purchase he undertook or assumed for Reily to pay the debt to Beall, and that Reily ever left in his hands any money for that purpose, and that he (Smith) ever promised to have an entry made on the records that the debt was satisfied. — The answer then avers that Smith had availed himself of all the means in his power to obtain satisfactory information respecting the title, and even of the existence of the Georgia land, and that failing in all his various attempts, he has reason to believe, and does believe, that he did not acquire any title. He denies that he ever told Reily that the payment of the debt by him (Smith) had been delayed in consequence of any dispute, and that he gave Reily any ground to believe or imagine that he (Smith) intended to pay the said debt or any part of it. That he never charged Reily in any account against him with the amount, or with any part of the debt, and that no part of the purchase money was ever deducted to pay the debt. It avers also that Smith in the years 1790, 1791, and 1792 did not keep any book of money accounts whatever, except a bank book, nor any kind of book of accounts wherein such an entry could with propriety have been made, and that there never was in his possession, or kept by him such a book of accounts as the said Reily has alleged. The answer does not state that Smith has in any manner paid Reily for the lands.
The copy of the chancellor's certificate of discharge, referred to in Reily's bill, states the date of the deed from Reily to his trustee, to be the 23d of March 1801, and not the 23d of December 1800, as alleged in the bill and admitted in Beall's answer.
The deed from Reily to Smith for the Georgia lands, and also a deed of quit claim from Cobbs (from whom Reily purchased them) to Smith, and the surveyor's plat and certificate of survey, were produced in evidence. The depositions tended to prove that Smith had received from Georgia, very favourable accounts of the Georgia land, and of the goodness of the title; and that the lands were worth a dollar per acre. That he had said, as late as June or July 1801, that at the time of his purchase from Reily, it was understood that any debts due from Reily, which Smith should satisfy, were to be admitted as payment for the land; that believing at that time that he had made a valuable purchase, he did pay some debts and offered to pay others, if the creditors would make abatements. That by the contract he was at full liberty to settle any debt due from Reily, in the easiest and most advantageous way to himself; that he denied that he had engaged to pay any particular debt, but that he was to discharge the purchase money, by purchasing or satisfying claims against Reily in any way he found best. That he offered to pay Beall the debt Reily owed him, if Beall would allow a handsome discount, but that Beall had refused to do so, and the conversation ceased. That he had not received any satisfactory information respecting the Georgia lands, and feared he had made an incautious purchase, and that the lands did not exist. He regretted that he had paid any thing; and said that he had offered Reily the lands again upon receiving what he had paid, which Reily declined. That he only wanted to be satisfied that there was such land as he had bought of Reily, and that he had title, and the business should be settled immediately with him; but that the business between Reily and Beall, was out of the question between him and Reily.
The evidence as to Beall, only went to prove that he had several times, expressed a belief that Reily had settled the debt with Smith.
At February Term, 1804, a preliminary question was suggested by Mason for the appellees, whether a citation was not necessary in cases of appeals, as well as in cases of writs of error, under the 22d section of the judiciary act of 1789, vol. 1, p. 62. Marshall, Ch. J. The question turns upon the construction of the act of March 3d 1803, vol. 6, p. 315. The words are, "and that such appeals shall be subject "to the same rule, regulations and restrictins as "are prescribed in law in case of writs of error."
Marshall, C.J. delivered the opinion of the court to the following effect: —
In this case the court has attentively considered the record, proceedings, and evidence. The only equity of the complainant's bill as to Lamar Beall, arises out of the transactions between him and the defendant, Smith, and the court is of opinion that that equity is not supported; and that the material allegations of the bill as to the defendant, Smith, and which are denied by his answer, are also unsupported by the evidence. Nor are the allegations of the complainant respecting his certificate of discharge, sufficiently proved.
By the separation of the district of Columbia from the state of Maryland, the complainant ceased to be a citizen of that state, his residence being in the city of Washington at the time of that separation.
As the complainant was entitled to a discharge, upon executing the deed of assignment of all his effects to the trustee appointed by the chancellor, his certificate would relate back to the date of the deed. It has been said, that the true date of that deed was the 23d of December 1800, and that the certificate of the chancellor, which states the date to be the 23d day of March 1801, is incorrect.
But the certificate of the chancellor, is the only evidence before the court as to that subject, and we must take it to be true. It is therefore, not material to inquire whether the inhabitants of the city of Washington, ceased to be citizens of Maryland on the 27th of February 1801, or on the first Monday of December 1800, as it is not contended that they were under the jurisdiction of Maryland so late as the 23d of March 1801.
The complainant, therefore, not being a citizen of Maryland at the time of executing the deed, did not bring himself within the provisions of the insolvent law, under which he claims relief.
I was inclined at first to think, that an account might have been directed between the complainant and the defendant, Smith, but the court is of opinion, that if he has any remedy against Smith, it is at law and not in equity. The bill must be dismissed with costs, but without prejudice.