#### Brickell and Green vs. Jones.

‘HpHE bill stated that Byrd was the administrator of his brother, 4 and they his sureties in the administration bond. That he was afterwards appointed, their guardian, and of course became entitled to receive whatever he. owed as administrator, which by Operation of law was a payment as administrator. That the defendant had sued for the children of the intestate, on the administration bond and recovered. The bill prayed an injunction. The answer was read and admitted the facts above stated; but insisted that the complainants, when defendants, at law, had urged the same facts by way of defence, and as they had the bene-fft of such defence at law, they ought n,ot again to urge the same in equity.

In support of the injunction it was argued by Haywood, that such facts amount to payment t and he cited Salk. 305, 326. Cro. C. 3,3/. 1 L. Ray. 520. There, by the verdict at law, and judgment which proceeded upon a mistake, the defendants when they owed nothing and were, legally discharged, have beca tin? *358justly made liable to the payment of the sum stated in the complainants bill, They have been guilty of no default or omission 5 the}' are brought into these circumstances by the mistake oí the court and jury. And as there is no court of errors, nor any other court in this state which has power to rescind this, judgment, and to relieve the defendants at lav/ by a revisal, this court ought to proceed rather upon the ground of mistake, as was done in 2 Washington, 273, 274, 275, or because after the judgment at law, the defendants at law became entitled to.rel.ieityhich.no, court,of law could give,

E contra., it was argued,

that to proceed here after a,cause pros,, perly cognizable at law had been determined in a court of laws would convert this, court into a court of appeals, and for matters., of law into a court of errors, and in a. short time all litigated causes will end here : v/bereas this court is for such extraordi-, nary cases as courts of law are not.competent, to redress,. The. defence here was proper to be made, and could hav.e been made with as much effect at law as in equity; and if either it was not-made where it might have been, and was made and over-ruled, though improperly, this court ought not to interfere.

Hall, Judge,

tools time to consider; and after some days, de=„ remained that the facts disclosed in the bill might have been used-by way of defence at law; and if used there and rejected as in=>. sufficient, there could;not be relief in equity.

Carried to the Court.of Conference.