Printup, trustee, vs. Trammel.

they are dealing on the credit of the trust estate, and ought to have just the security they rely on and no more. In this case, the plaintiff in the Court below sold property to the cestui que trust; the notes were given for the property, the trustee specifies in the face of each note that he promises as trustee, and the plaintiff received them with such understanding, and he ought not to be allowed to recover of the trustee individually. In the case of Ashley vs. Ashley, 7. Barnwell & Creswell, 446, some of the Court but for the power of precedents, would have recognized a rule more compatible with reason and justice, in the case of executors, and I know of no authorities which bind us down in a case like the present, to say that the trustee shall be liable from his private funds.

[2.] At the time this suit was commenced, a trust fund could be subjected to the payment of debts through a Court of Equity only. That Court has always claimed and held an exclusive jurisdiction in such cases. It can enquire into the whole matter, and determine whether the debt was necessary and just, and properly chargeable upon the trust fund; whether the trustee had acted in any manner faithlessly, so as to subject him to a liability for the whole, or a part of the debt; whether there had been fraud or imposition on the part of the creditor, so as to affect his right of recovery, in whole or in part.

Since the institution of this suit, the Legislature has passed an Act to authorize claims against trust estates to be recovered in a Court of law.

It is an Act respecting the remedy, and claims arising before its passage, may be collected under it.

The Court below erred in refusing the motion to dismiss the case, and also in charging the jury that the defendant was personally liable, and that a Court of law had jurisdiction of the case.

Judgment reversed.

Bigby vs. Powell, adm'r.

JOHN BIGBY, plaintiff in error, vs. GEORGE POWELL, administrator, defendant in error.

[1] To entitle a complainant in equity to relief on the ground of fraud, there must be damage as well as fraud.

[2.] It is no ground of equity that counsel misrepresented the contents of a bill of exceptions to the Judge for his certificate or signature, or to the counsel of the opposite party for his acknowledgment of service. In such cases it is always at hand and ought to be read.

[3] Ifdefendant in error relies, as a defence, upon a release of the errors assigned in the record, he must plead it.

[4.] A complainant seeking relief, cannot rely on a mere obiter of the Court during the progress of an argument before it, as settling the law, nor of a deslaration by a member of the Court of what would have been the decision of the Court under a different state of facts, which would have been presented had he not been entrapped by representations of opposite counsel, as enti tling him to an equity, when there is none without it, and the declaration not sustained by the law.

[5.] If a party be entrapped, by misrepresentations, to join issue on assignment of error, he ought, as soon as he discovers it, show it to the Court and move to withdraw his joinder.

[6.] The omission of a palpable duty ought never to be allowed as a ground of equity.

In Equity. From Coweta county. Decision by Judge BULL at September Term, 1857.

This was a bill filed by John Bigby against George Powell, administrator of John B. Russell, deceased.

The bill, in substance, states, that in the year 1847, plaintiff brought his action of trover against said Russell, then in life, for three negroes. That at September term, 1850, verdict on the appeal was rendered in favor of defendant; whereupon plaintiff moved for a new trial, and at March Term, 1853, the verdict was set aside and a new trial granted. In the meantime Russell departed this life, and defendant, George Powell, his administrator, was made a party. At the same Term, March, 1853, a trial was had and a verdict for plaintiff for two of the negroes (one having died) and $799 87 for hire, and cost of suit: upon which judgment

Bigby vs. Powell, adm'r.

was signed and entered; and the same was discharged by the delivery of the negroes and the payment of the money, without any execution being sued out; and the suit was regarded as terminated.

The bill further states, that the counsel of Powell, and without his crders or instructions, within thirty days from the adjournment of the Court at which said verdict was rendered, and after the negroes were delivered up and most of the hire paid, made out a bill of exceptions in said case, and tendered the same to the presiding Judge, assuring him that the same contained "all the facts and carried up the whole record," and that plaintiff's counsel had examined it and was satisfied. That the Judge, relying upon this statement, certified to the correctness of the bill of exceptions, when in fact, plaintiff's attorneys had never examined said bill or agreed to the same.

The bill further states, that counsel for defendant presented said bill of exceptions to plaintiff's attorney to acknowledge service, assuring him, upon his professional honor, that the record was full and complete, and all the facts stated, and pretending to be in a great hurry; relying upon this assurance, complainant's attorney acknowledged service without examining the papers; that said bill of exceptions did not contain all the facts, and was partial and incomplete, and only set out the proceedings in the case up to the granting of the new trial, and was wholly silent as to the last trial and all the subsequent proceedings. That at the Supreme Court, defendant's counsel again applied to complainant's counsel to join issue, stating that all was right, and that his associate counsel had joined issue, but that it was lost, and he only wanted it replaced; and also further stated that complainant's associate had admitted that the record was full and right. Misled and deceived by this statement and device complainant's counsel joined issue without examining the papers, and without suspecting any unfairness or improper advantage, until, in his argument before the Supreme Court,

Bigby vs. Powell, adm'r.

he was stopped upon the ground that the bill of exceptions and record showed no proceeding or action in the Court below subsequent to the order granting the new trial, and by this means a judgment was obtained in the Supreme Court, reversing the judgment and order of the Court below, granting the new trial.

The bill further alleges, that defendant, Powell, availing himself of the advantage thus fraudulently obtained, is seeking to recover of plaintiff the said two negroes and their hire, and has instituted, for that purpose, his actions-one of trover, and the other of assumpsit. That complainant cannot successfully defend said actions at law by reason of the facts aforesaid, and prays that said actions be enjoined, &c.

To this bill defendant demurred. First, for want of equity. Second, that the remedy at law was ample and sufficient.

The Court sustained the demurrer and dismissed the bill. Whereupon counsel for complainant excepted and assigns as error said judgment.

ROBERT W. SIMMS, for plaintiff in error.

WARNER; and MCKINLEY, contra.

By the Court.-MCDONALD J. delivering the opinion.

This case was before this Court at February Term, 1854. It came up then on an exception to the decision of the Court below, allowing the defendant in that Court to enter up a judgment, nunc pro tunc, on the verdict which had been rendered in his favor, this Court having reversed the judgment of the Court below, which had granted a new trial in said cause.

This Court affirmed this last judgment, the effect of which was to annul the proceedings in the Circuit Court subsequent, to and consequent on the judgment of that Court granting a new trial. The defendant in the action having surrendered the negroes sued for, and having also paid the

Bigby vs. Powell, adm'r.

hire recovered on the trial of the cause, before the reversal of the judgment ordering a new trial, now brings his actions to recover back the negroes and the money delivered and paid over on the annulled judgment. This bill is filed on the ground presented in the statement prefixed to this opinion, and prays a perpetual injunction of these actions. The bill was demurred to, the demurrer was sustained and the judgment of the Court below on the demurrer is excepted to and assigned as error.

The ground upon which the complainant presents his title to relief is, that he was misled and deceived by the statements and denials of the counsel of the opposite party, as set forth in the bill, and was thereby entrapped into a joinder of issue on the assignment of error in the cause when first brought to this Court, which, by the rules of practice of this Court at that time, amounted to a waiver of objections to a sufficiency of the record as sent up.

[1] When a suitor presents himself to a Court of Chancery for relief from a contract on the ground of fraud or imposition, he must show a case in which he not only relied on the statements of the opposite party, but he must show that there was a necessity for it from causes deemed adequate by the Court. In a case like this, the same rule applies. Again, to be entitled to the relief sought, the party must show, not only that he was misled and deceived, but that he was endamaged thereby. If no damage resulted from the fraud he is entitled to no relief. In other words, to apply the principle to this case; if in the case in which a reversal of the judgment of the Circuit Court on the motion for a new trial was sought, the entire record of the cause, including the last trial in which the verdict was for the plaintiff, had been sent up by the Clerk, and the judgment of reversal must, nevertheless, have been rendered, there could have been no damage resulting to the complainant from the alleged fraud of the counsel of plaintiff in error, there can be no ground for the interption of Court of Equity.