Smith v. Houston. The plaintiff can't recover upon the common counts, because the defendant did not receive any part of the proceeds of the cotton; nor could he recover in case on the ground of the defendant's negligence. The plaintiff had interposed and undertaken to become the collector of the money, and he should have returned the order before he could ask the trustee to interfere. Conceding that the charge of the Court was incorrect, in laying down legal propositions, yet, if from the entire facts disclosed in the record, the plaintiff can't recover, the error of the Court does not authorize the reversal of the judgment. [Porter v. Nash, 1 Ala. Rep. N. S. 452. COLLIER, C. J.-The facts proved at the trial did not sustain either of the common counts. They do not establish the loan, advance, or payment of money by the plaintiff for the defendant, nor do they show that the latter had received money for the use of the former, or that he was indebted to him upon an account stated. It appears that Bunn and one of the beneficiaries in the deeds of trust marked the cotton of the former with the initials of the defendant's name, shipped it to Messrs. D, S & Co., and informed him thereof. To reimburse the plaintiff for his advances, the order in question was addressed to the consignees. It will be observed, that the defendant never did take the cotton into his possession; it was merely shipped in his name for sale, and there is no proof that he ever assented to the transaction by undertaking to supervise the sale and withdraw the proceeds, to be appropriated for the purposes provided by the deed. The reasonable inference from the case as presented to us, is, that the defendant gave the order to the plaintiff merely to carry out the agreement of the grantor in the deeds, and his sureties. No previous obligation rested upon the defendant in respect to the cotton or its proceeds, and the order, under the circumstances, did not impose on him the legal duty of coercing payment of Messrs. D, S & Co., if they refused to honor it. It is not pretended that any consideration moved to the defendant, which could make him liable to make good the default of the drawees; and the order, especially when connected with the extrinsic proof, shows a case in which the defendant was employed as a mere instrument for Smith v. Houston. the performance of a gratuitous duty, which others had devolved upon him. The defendant has done every thing which he undertook to do. He has directed the payment of the money to the person entitled to it; whether paid or not, his legal and moral duty is at an end, and he cannot be required to compel the consignees to account for the proceeds of the cotton. This conclusion seems to us, to result so clearly from the nature and extent of the defendant's engagement as trustee, that the argument to sustain it, will not admit of amplification. Without stopping to inquire whether the last count is unobjectionable, we are inclined to think that it is not sustained by the proof. It alledged that Messrs. D, S & Co. " had received said cotton for sale from said defendant, for the benefit of plaintiff and Bevill, as aforesaid," &c. Now although it is alledged that Bunn had agreed to give the plaintiff the control of his cotton crop, yet we have seen that the agreement was not performed, and that instead of placing it in the defendant's possession, or shipping it to his order, Bunn and Bevill merely marked it in his name, and shipped it to the consignees. This proof does not sustain the allegation that the defendant was the shipper of it, or that Messrs. D, S & Co. received it from him. It does not appear that the consignees were instructed to sell for the account of the defendant, or to place the proceeds to his credit. There is then, a defect in the proof, in showing that the cotton was placed under the defendant's control. Whether he might not, by the employment of legal coercion, have compelled Messrs. D, S & Co. to account to him, we need not consider, as he was under no obligation to adopt such measures. And perhaps, if such an inquiry were now proper, no satisfactory conclusion could be attained from the facts in the record. The statement in the order, that the defendant had shipped the cotton, as trustee, does not conclude the defendant against the facts proved at the trial. The discrepancy noticed between the allegation and the proof, relates to a part of the account as material as any other, if indeed all of it together states a legal duty. From this view of the case, it results, that the plaintiff did not sustain his declaration, that he was not entitled to a verdict, and whether the charge to the jury laid down the law correctly or not, it worked no injury to him, Woods' adm'rs v. Brown. and the error, if any, does not authorize a reversal of the judg ment. The conclusion expressed, relieves us from the necessity of inquiring whether, if the special count be bad, yet supported by the evidence, a general charge against the plaintiff would furnish a ground for a reversal, or whether the plaintiff should not have prayed the Court to instruct the jury on that count alone. See Cullum v. The Branch Bank at Mobile, 4 Ala. Rep. 39. We have only to add, that the judgment of the Circuit Court is affirmed. WOODS' ADM'RS v. BROWN. 1. Where the counsel for both parties agree that an exception taken at the trial shall be examined after the adjournment of the Court, and the bill of exceptions then sealed and allowed, this is not a failure or refusal of the Judge, within the act of 1826, so as to warrant the Supreme Court to allow the exceptions. AFTER the bill of exceptions was stricken from the record, a motion was submitted on behalf of the plaintiffs in error, to file it as the exceptions taken at the trial, and to proceed with the cause in the same manner as if it had been certified by the Judge who tried the cause. In support of the motion, the certificate appended to the bill, which has already been stated supra 563, was read as evidence, in addition to an affidavit of one of the counsel, setting out the same facts substantially. HOPKINS and EDWARDS, in support of the motion, insisted that the facts disclosed seemed to present a case directly within the act of 1826. [Clay's Digest, 307, § 5.] G. W. GAYLE, Contra, argued, there could be no failure when the Judge actually had sealed and allowed the exceptions. The Knotts v. Tarver. facts shew only that the bill was sealed and allowed at a time when the Court had no power whatever to act. GOLDTHWAITE, J.-My own opinion is, that the act of 1826, in one of its aspects, was intended to cover precisely such a case as this. It provides for the failure of the Judge, as well as for his refusal to certify an exception; but it does not follow that a failure must be established in the same manner as a refusal. I can conceive of no case of failure, except the single instance of the death of the presiding Judge, in which the act of 1826 can afford relief, if it is denied in this case. But in this opinion I stand alone; the other members of the Court consider the case merely one of great hardship under the circumstances, as every thing was conducted with perfect fairness and good faith. In their judgment there is nothing in the case, as presented, which shows any failure or refusal on the part of the Judge, and therefore that it is not within the intent or meaning of the act. Motion refused. 8 743 93 574 8 743 96 298 KNOTTS v. TARVER. 1. It is not sufficient to give a Court of Chancery jurisdiction, that an account exists between the parties, or that a fraud has been practised. There must be a discovery wanted to disclose the fraud, or in aid of the account, or the accounts must be so complicated, as to require the aid of a Court of Chancery to adjust them. Error to the Chancery Court of Russell. THE bill was filed by the plaintiff in error, and charges in substance, that the defendant as his agent, undertook to purchase for him from one John Freeman, a tract of land which is described. That it was supposed the land could be purchased for $1,100, and to enable the agent to make it, he executed two notes paya 8 743 104 300 8 743 116 289 Knotts v. Tarver. ble to Freeman, for $550 each, and delivered them to him. That he proceeded to make the purchase. and did purchase the land from Freeman for $1,100, giving him the two notes of complainant, and taking a bond for title from Freeman to complainant. That on his return, he represented to complainant, that he was compelled to pay Freeman $1,500 for the land, before he could obtain it, and that in addition to the two notes for $1,100, he had paid Freeman $400 of his own money. That complainant, supposing his representations to be true, paid him $330 in cash, and executed his note to him for $70, all of which except five dollars he has paid. The bill charges fraud, prays a discovery, and for a decree for the money thus fraudulently obtained by the agent. Tarver denies the material allegations of the bill, but they are fully sustained by the evidence. The chancellor, at the hearing, dismissed the bill for want of equity; from which this writ is prosecuted. McLESTER, for plaintiff in error.-The complainant is entitled to recover the money fraudulently obtained by the agent, as so much money paid for his own property. [1 Sug. on Vend. 307; 1 Vesey, sr. 126; 2 Id. 304; 4 Bibb, 343.] The Court having jurisdiction for discovery, will retain it for relief. [1 Story's Eq. 87; 10 Johns. Rep. 587; 7 Cranch, 69.] The jurisdiction of the Court is sustainable on the ground of fraud, [1 Story's Eq. 85,] and also because an account was necessary to ascertain the amount due on the note unpaid. PECK, contra, insisted that the party had a full and adequate remedy at law. ORMOND, J.-If this bill can be sustained, it must be on the ground of fraud, or that there is an account to be settled between the parties. These acknowledged heads of equity, are not of themselves sufficient to confer jurisdiction on a court of chancery. No matter how gross the fraud may be, if the party can have full, complete and adequate redress at law, he cannot go into a court of equity. This is a well established principle, and the contrary doctrine would fill the courts of chancery with suits, which could be better, and more cheaply adjudicated in the courts of law. The principle was recognized by this Court, in Sadler v. Robin |